Prepared Statement of the Federal Trade Commission

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Before the United States Senate Committee on the Judiciary

Subcommittee on Antitrust, Competition Policy and Consumer Rights

“Oversight of the Enforcement of the Antitrust Laws”

September 20, 2022

Chairwoman Klobuchar, Ranking Member Lee, and distinguished members of the

Subcommittee, I am Lina Khan, Chair of the Federal Trade Commission, and I am pleased to

testify today on behalf of the Commission.1 I want to thank members of this Committee for the

opportunity to discuss our current competition enforcement activities and priorities as well as for

their support of our work.

Vigorous antitrust enforcement is critical to the growth and dynamism of our economy,

as well as to our shared prosperity and liberty. Recent decades have vividly illustrated how

Americans lose out when markets become more consolidated and less competitive. Prices rise,

wages fall, and our markets become more fragile and less resilient. These effects have been on

full display over the last year, as supply shocks stemming from the pandemic and contaminated

products have led to severe shortages and steep price hikes.

Examples of these effects abound throughout the economy. We at the FTC have learned

directly about some of them during recent public listening sessions convened to hear from people

with first-hand experience regarding the effects of concentration in our markets. 2 For example,

nurses described how hospitals, after merging, drastically reduced staffing, closed primary-care

clinics, cut geriatric services, and eliminated essential programs like rural cancer care. 3 Diabetes

patients explained that they have been forced to ration their insulin and jeopardize their health

because scant competition among insulin producers has resulted in dramatic price increases for

this essential product, despite no increase in manufacturing costs. 4 And family ranchers and

small farmers told us about their struggles to get their products to market because of the

anticompetitive practices of large supermarket chains and dominant agribusiness firms, including

meat processors and dairy bottlers. 5

These facts invite us to reassess how we can enforce the antitrust laws to ensure maximal

efficacy. At the FTC, we are doing so by reactivating the full set of authorities that Congress

granted us and by ensuring that we are being faithful to controlling law and precedent. We are

also updating our tools to ensure they better correspond to new market realities.

This written statement presents the views of the Federal Trade Commission. The oral statement and responses to

questions by Chair Khan do not necessarily reflect the views of the Commission or any other Commissioner.

Press Release, Fed. Trade Comm’n, FTC and Justice Department Launch Listening Forums on Firsthand Effects of

Mergers and Acquisitions (Mar. 17, 2022), http://www.ftc.gov/news-events/news/press-releases/2022/03/ftc-justicedepartment-launch-listening-forums-firsthand-effects-mergers-acquisitions.

FTC and Justice Department Listening Forum on Firsthand Effects of Mergers and Acquisitions: Health Care

(Apr. 14, 2022) (transcript available at http://www.ftc.gov/system/files/ftc_gov/pdf/FTC-DOJ-Listening-Forum%20Health-Care-Transcript.pdf) at 4.

Id. at 8.

FTC and DOJ Merger Guidelines Listening Forum (Mar. 28, 2022) (transcript available at

http://www.ftc.gov/system/files/ftc_gov/pdf/FTCDOJ%20Merger%20Guidelines%20Listening%20Forum_FTC_March%2028%202022.pdf) at 2-4.

In practice, this means reorienting our enforcement efforts to better capture harm from

mergers involving firms at different levels of the supply chain (i.e., non-horizontal mergers) and

to better anticipate future competition concerns before markets are dominated by only a few

firms, as contemplated by the Clayton Act’s call to arrest monopolies “in their incipiency.” It

also requires a focus not only on the output side of markets, such as the goods and services

offered to consumers, but on the input side as well. This means ensuring competitive markets for

workers’ labor, which help workers receive fair pay and better working conditions and benefits.

To maximize the efficacy of the agency’s scarce resources, we are orienting our

enforcement efforts around targeting root causes of competitive harm rather than looking at oneoff effects. This means focusing on structural conditions and incentives that enable and motivate

unlawful conduct—be it certain conflicts of interest, business models, or structural dominance—

as well as looking upstream at the firms that are enabling and profiting from this conduct. To

accomplish this, we are making greater use of technologists, computer scientists, and a broad

range of methodological skillsets to enhance our understanding of new and emerging markets

and next-generation technologies. Investing in this horizon-scanning work can enable timely

intervention, allowing us to tackle problems at their incipiency, thereby limiting harms and

saving resources over the long term.

As we undertake this work, the FTC is prioritizing clarity, administrability, and public

participation. Notably, this effort includes issuing policy statements and other guidance to

provide clear notice of FTC enforcement practices and priorities. 6 It has also included changing

our rules of practice to make it easier for members of the public to petition the agency for new

rules or changes to existing rules, opening up our processes to greater public input and scrutiny. 7

And since last summer the FTC has held monthly Commission meetings that are open to the

public and where members of the public can sign up to share their views and perspectives

directly with the Commission.

Finally, to maximize the impact of our efforts, we are focused on enhancing and

deepening collaboration with other governmental institutions. This includes not only traditional

partners, such as the DOJ, state attorneys general, and international enforcers, but also other

federal agencies, such as the Departments of Defense and Agriculture and National Labor

Relations Board (“NLRB”) 8. While the FTC is an independent agency, we very much recognize

See, e.g., Policy Statement on Rebates and Fees in Exchange for Excluding Lower Cost Products (Jun. 16, 2022),

http://www.ftc.gov/legal-library/browse/policy-statement-federal-trade-commission-rebates-fees-exchangeexcluding-lower-cost-drug-products; Statement of the Commission on the Use of Prior Approval Provisions in

Merger Orders (Oct. 25, 2021),

https://www.ftc.gov/system/files/documents/public_statements/1597894/p859900priorapprovalstatement.pdf.

Press Release, Fed. Trade Comm’n, FTC Opens Rulemaking Petition Process, Promoting Public Participation and

Accountability (Sep. 15, 2021), https://www.ftc.gov/news-events/news/press-releases/2021/09/ftc-opensrulemaking-petition-process-promoting-public-participation-accountability.

The FTC entered into a Memorandum of Understanding with the NRLB in July 2022, intended to increase

collaboration on key issues such as labor market concentration, one-sided contract terms, and labor developments in

the “gig economy.” See Press Release, Fed. Trade Comm’n, Federal Trade Commission, National Labor Relations

Board Forge New Partnership to Protect Workers from Anticompetitive, Unfair, and Deceptive Practices (Jul. 19,

2022), http://www.ftc.gov/news-events/news/press-releases/2022/07/federal-trade-commission-national-laborrelations-board-forge-new-partnership-protect-workers.

the benefits of a “whole-of-government” approach to competition. Collaborating with other

federal agencies ensures we are benefiting from expertise across government, drawing on

industry-specific knowledge, and in turn helping equip other agencies to diagnose and address

competition problems more directly.

None of this work would be possible without our talented agency staff, whose diligence

and dedication are second to none. Despite facing severe resource constraints and formidable

defendants, our staff bring unmatched courage and commitment to protecting the American

people from unlawful business practices and promoting fair competition.

Law Enforcement

Guided by the vigorous and faithful execution of the federal antitrust laws, the

Commission is focusing its enforcement efforts and resources on targeting mergers and conduct

that pose the greatest threats to open, competitive, and fair markets. Reestablishing deterrence is

a key goal, and we are working to achieve this by redoubling our effort to pursue effective

remedies and by providing clarity about how we will execute the law through both individual

actions and broader guidance.

Promoting Rigorous Merger Enforcement

Together, the FTC and the DOJ represent the American people’s front-line defense

against unlawful consolidation, and the work we do to prevent that consolidation is critically

important. Our staff has worked tirelessly to meet the enormous demand of enforcing the laws

against unlawful mergers amid a historic surge: in 2021, global deal-making soared to $5.8

trillion, the highest level ever recorded. 9 A record 3,644 transactions were reported to the FTC

and DOJ in FY 2021, which is 87% more than the average number of transactions reported over

the past five years, 10 and they remain at historically high levels. 11 FTC staff continues to do an

outstanding job during this challenging period of record dealmaking despite facing serious

staffing and resource constraints.

Against this backdrop, the FTC remains committed to challenging unlawful deals. Over

the past year we have moved to challenge major transactions in critical sectors of the economy,

including semiconductors, defense, energy, healthcare, and digital markets. 12 This includes filing

Kaye Wiggins et al., Dealmaking Surges Past $5.8tn to Highest Levels on Record, FIN. TIMES (Dec. 30, 2021),

https://www.ft.com/content/6dfdd78a-e229-4524-a400-144396524eb6.

Premerger Notification Program, FED. TRADE COMM’N, https://www.ftc.gov/enforcement/premerger-notificationprogram (last visited Sept. 14, 2022); FED. TRADE COMM’N & DEP’T OF JUSTICE, HART-SCOTT-RODINO ANNUAL

REP. FISCAL YEAR 2020, Exh. A, Tbl. I, Tbl. IV (2021), https://www.ftc.gov/system/files/documents/reports/hartscott-rodino-annual-report-fiscal-year-2020/fy2020_-_hsr_annual_report_-_final.pdf.

FY 2022 only trails FY 2021 as the highest number of filings since merger notification thresholds were adjusted in

2000. Premerger Notification Program, FED. TRADE COMM’N, https://www.ftc.gov/enforcement/premergernotification-program (last visited Sept. 14, 2022).

Complete FY 2022 FTC enforcement numbers will be available at a later date on the FTC website at

https://www.ftc.gov/policy/reports/annual-competition-reports.

suit to block six mergers outright so far in FY 2022, 13 and parties have abandoned several other

anticompetitive mergers shortly before the Commission voted out a complaint to challenge

them. 14

Among these merger enforcement efforts is critical FTC work to prevent further

consolidation in markets for hospital services. On the same day in June 2022, the Commission

voted to block two proposed hospital mergers: HCA’s acquisition of Steward Health Care

System 15 and RWJBarnabas’s acquisition of Saint Peter’s Healthcare System. 16 Each of these

mergers threatened to raise healthcare costs at a time when American families are still reeling

from the health and financial challenges of the COVID pandemic. Healthcare experts have

shown that competition among health systems—not consolidation—results in lower prices and

improved health outcomes for patients, 17 as well as better wages and benefits for employees. 18 It

Press Release, Fed. Trade Comm’n, FTC Seeks to Block Virtual Reality Giant Meta’s Acquisition of Popular App

Creator Within (July 27, 2022), https://www.ftc.gov/news-events/news/press-releases/2022/07/ftc-seeks-blockvirtual-reality-giant-metas-acquisition-popular-app-creator-within; Press Release, Fed. Trade Comm’n, FTC Sues to

Block Merger Between Utah Healthcare Rivals HCA Healthcare and Steward Health Care System (Jun. 2, 2022),

https://www.ftc.gov/news-events/news/press-releases/2022/06/ftc-sues-block-merger-between-utah-healthcarerivals-hca-healthcare-steward-health-care-system; Press Release, Fed. Trade Comm’n, FTC Sues to Block Merger

Between New Jersey Healthcare Rivals RWJBarnabas Health and Saint Peter’s Healthcare System (Jun. 2, 2022),

https://www.ftc.gov/news-events/news/press-releases/2022/06/ftc-sues-block-merger-between-new-jerseyhealthcare-rivals-rwjbarnabas-health-saint-peters; Press Release, Fed. Trade Comm’n, FTC and Rhode Island

Attorney General Step in to Block Merger of Rhode Island’s Two Largest Healthcare Providers (Feb. 17, 2022),

https://www.ftc.gov/news-events/news/press-releases/2022/02/ftc-rhode-island-attorney-general-step-block-mergerrhode-islands-two-largest-healthcare-providers; Press Release, Fed. Trade Comm’n, FTC Sues to Block Lockheed

Martin Corporation’s Vertical Acquisition of Aerojet Rocketdyne Holdings Inc. (Feb. 15, 2022),

https://www.ftc.gov/news-events/news/press-releases/2022/01/ftc-sues-block-lockheed-martin-corporations-44billion-vertical-acquisition-aerojet-rocketdyne; Press Release, Fed. Trade Comm’n, FTC Sues to Block $40 Billion

Semiconductor Chip Merger (Dec. 2, 2021), https://www.ftc.gov/news-events/news/press-releases/2021/12/ftc-suesblock-40-billion-semiconductor-chipmerger.

See, e.g., Press Release, Fed. Trade Comm’n, Expected Federal Trade Commission Opposition to Transaction

Leads Great Outdoors Group, LLC and Rival Sportsman’s Warehouse Holdings, Inc. to Abandon Plans for

Proposed Merger (Dec. 3, 2021), https://www.ftc.gov/news-events/news/press-releases/2021/12/expected-federaltrade-commission-opposition-transaction-leads-great-outdoors-group-llc-rival.

Press Release, Fed. Trade Comm’n, FTC Sues to Block Merger Between Utah Healthcare Rivals HCA Healthcare

and Steward Health Care System (Jun. 2, 2022), https://www.ftc.gov/news-events/news/press-releases/2022/06/ftcsues-block-merger-between-utah-healthcare-rivals-hca-healthcare-steward-health-care-system.

Press Release, Fed. Trade Comm’n, FTC Sues to Block Merger Between New Jersey Healthcare Rivals

RWJBarnabas Health and Saint Peter’s Healthcare System (Jun. 2, 2022), https://www.ftc.gov/newsevents/news/press-releases/2022/06/ftc-sues-block-merger-between-new-jersey-healthcare-rivals-rwjbarnabashealth-saint-peters.

See, e.g., Zack Cooper et al., The Price Ain’t Right? Hospital Prices and Health Spending on the Privately

Insured, 134 Q.J. ECON. 51 (2019); Nancy Beaulieu et al., Changes in Quality of Care after Hospital Mergers and

Acquisitions, 382 NEW ENG. J. MED. 51 (2020). For surveys of the research literature, see, e.g., Martin Gaynor &

Robert Town, The Impact of Hospital Consolidation, THE SYNTHESIS PROJECT, ROBERT WOOD JOHNSON

FOUNDATION (June 2012), http://www.rwjf.org/content/dam/farm/reports/issue_briefs/2012/rwjf73261; Martin

Gaynor, Kate Ho & Robert Town, The Industrial Organization of Health-Care Markets, 53 J. ECON. LITERATURE

235 (2015).

See, e.g., Elena Prager & Matt Schmitt, Employer Consolidation and Wages: Evidence from Hospitals, 111 AM.

ECON. REV. 397 (2021); Daniel Arnold & Christopher Whaley, Who Pays for Health Care Costs? The Effects of

Health Care Prices on Wages (RAND Health Care Working Paper, 2021),

https://www.ehealthecon.org/pdfs/Whaley.pdf. The Commission laid out much of this empirical evidence in a recent

is imperative that the Commission continue to identify and challenge hospital mergers that

threaten access to critical healthcare services. 19

In addition to tackling anticompetitive deals involving direct competitors, the

Commission is taking steps to better capture the full set of ways in which mergers can harm

competition. Central to this effort is placing greater weight on assessing both non-horizontal and

forward-looking competitive harm. This approach is being incorporated into FTC merger review

generally and has been reflected in several recent merger challenges.

For example, in December 2021, the FTC sued to stop U.S. chip supplier Nvidia Corp.’s

proposed $40 billion acquisition of U.K. chip design provider Arm Ltd. 20 When announced, this

deal represented the largest semiconductor merger ever attempted. More than two months into its

litigation with the FTC, Nvidia abandoned its acquisition of Arm—representing the first

abandonment of a litigated vertical merger in many years. The proposed merger would have

given one of the largest chip companies control over its rivals’ designs for competing chips. By

doing so, the FTC’s complaint alleged that the combined firm would have had the means and

incentive to stifle next-generation technologies, including those used to run datacenters and

driver-assistance systems in cars. Blocking the deal preserved competition for key technologies

and safeguarded future innovation while also preventing further disruption to an already

distressed semiconductor supply chain. The FTC team did outstanding work on the investigation

and litigation.

This effort also includes the Commission’s February 2022 lawsuit to block Lockheed’s

proposed acquisition of Aerojet, a $4.4 billion defense merger that would have eliminated the

country’s only remaining independent supplier of key missile propulsion inputs and given

Lockheed the ability to cut off its competitors’ access to these critical components. 21 The FTC’s

investigation, conducted in close collaboration with the Department of Defense, determined that

the deal would have resulted in higher prices and diminished quality and innovation for programs

critical to our national security. This challenge dovetailed with a DoD report indicating that

policy paper highlighting the pitfalls of Certificates of Public Advantage (COPAs), which are efforts by states to

replace beneficial healthcare competition with state oversight, that have proven to be detrimental for patient costs,

quality, and reduced employee wages. Press Release, Fed. Trade Comm’n, FTC Policy Paper Warns About Pitfalls

of COPA Agreements for Patient Care and Healthcare Workers (Aug. 15, 2022), http://www.ftc.gov/newsevents/news/press-releases/2022/08/ftc-policy-paper-warns-about-pitfalls-copa-agreements-patient-care-healthcareworkers.

In addition to the two challenges highlighted above, the two largest healthcare systems in Rhode Island, Lifespan

Corp. and Care New England Health System, called off their merger after the FTC, in conjunction with the Rhode

Island Attorney General, sought to block the merger. See Press Release, Fed. Trade Comm’n, Statement Regarding

Termination of Attempted Merger of Rhode Island’s Two Largest Healthcare Providers (Mar. 2, 2022),

https://www.ftc.gov/news-events/news/press-releases/2022/03/statement-regarding-termination-attempted-mergerrhode-islands-two-largest-healthcare-providers.

Press Release, Fed. Trade Comm’n, FTC Sues to Block $40 Billion Semiconductor Chip Merger (Dec. 2, 2021),

https://www.ftc.gov/news-events/news/press-releases/2021/12/ftc-sues-block-40-billion-semiconductor-chipmerger.

Press Release, Fed. Trade Comm’n, Statement Regarding Termination of Lockheed Martin Corporation’s

Attempted Acquisition of Aerojet Rocketdyne Holdings Inc. (Feb. 15, 2022), https://www.ftc.gov/newsevents/news/press-releases/2022/02/statement-regarding-termination-lockheed-martin-corporations-attemptedacquisition-aerojet.

consolidation within the defense-industrial base poses a risk to national defense and identifying

strong merger enforcement as a key tool to address it. 22

And, without commenting on the merits since the case is currently pending in an

administrative proceeding, the Commission in March 2021 challenged Illumina’s vertical

acquisition of Grail. 23 The Commission’s complaint alleges that the deal between Illumina, the

only viable provider of DNA sequencing tools, and Grail, a maker of multi-cancer early

detection tests, would lead to reduced innovation for these lifesaving tests. 24

The FTC takes seriously its Congressional mandate to arrest monopolies in their

incipiency. This is demonstrated, in particular, by its July 2022 challenge to Meta’s proposed

acquisition of Within Unlimited. 25 As noted in the complaint, social-media firm Meta has

become the largest provider of virtual reality devices and a leading provider of related apps in the

U.S., while Within is an independent virtual reality development studio that designed and built

Supernatural, a popular app in the dedicated fitness virtual reality app market. The complaint

contends that Meta is a potential entrant in the virtual reality dedicated fitness app market with

the required resources and a reasonable probability of building its own virtual reality app to

compete in the space. The complaint alleges that Meta’s choice to buy Supernatural rather than

entering independently will reduce consumer choice, innovation, and competition to attract the

best employees. The complaint further alleges that the mere possibility of Meta’s entry has likely

influenced competition in the virtual reality dedicated fitness app market.

Importantly, the Commission has been reassessing the efficacy of its approach to merger

remedies and identifying how to learn from lessons of the past. Specifically, we now strongly

disfavor behavioral remedies and will not hesitate to reject proposed divestitures that cannot

fully cure the underlying harm.

The Commission is also focused on including provisions in consent orders that will

protect against future unlawful mergers, especially those that might not trigger a merger

notification obligation and would otherwise move forward without agency review. Last summer

the Commission withdrew the 1995 Policy Statement on Prior Approval and Prior Notice

Provisions and reinstated the Commission’s longstanding practice of requiring parties that

proposed unlawful mergers to receive prior approval and give prior notice for future transactions.

The FTC has already included prior approval provisions in a number of consent decrees,

including, for example, imposing strict limits on future mergers by DaVita, Inc., a dialysis

service provider with a history of fueling consolidation in life-saving health industries. DaVita

DEP’T OF DEFENSE, OFF. OF THE UNDER SECRETARY OF DEFENSE FOR ACQUISITION AND SUSTAINMENT, STATE OF

COMPETITION WITHIN THE DEFENSE INDUSTRIAL BASE 4 (2022).

Press Release, Fed. Trade Comm’n, FTC Challenges Illumina’s Proposed Acquisition of Cancer Detection Test

Maker Grail (Mar. 30, 2021), https://www.ftc.gov/news-events/news/press-releases/2021/03/ftc-challengesilluminas-proposed-acquisition-cancer-detection-test-maker-grail.

Complaint, In re Illumina, Inc., Docket No. 9401,

https://www.ftc.gov/system/files/documents/cases/redacted_administrative_part_3_complaint_redacted.pdf.

Press Release, Fed. Trade Comm’n, FTC Seeks to Block Virtual Reality Giant Meta’s Acquisition of Popular App

Creator Within (Jul. 27, 2022), https://www.ftc.gov/news-events/news/press-releases/2022/07/ftc-seeks-blockvirtual-reality-giant-metas-acquisition-popular-app-creator-within.

must obtain the FTC’s approval before acquiring any new ownership interest in a dialysis clinic

statewide for a period of ten years.

The Commission is concerned about the anticompetitive roll-up strategies of private

equity firms, particularly when they buy up small firms in already concentrated markets. Earlier

this year, the FTC entered into two separate consent decrees with JAB Consumer Partners, a

private equity firm that has been acquiring specialty and emergency veterinary clinics around the

country, many of which have fallen below the threshold requiring the parties to file merger

notifications with the antitrust agencies. 26 In 2020, the Commission reviewed a prior JAB

acquisition and required the divestiture of three clinics. 27 But this year, given the rapid pace of

JAB’s continuing acquisitions of veterinary clinics throughout the country and the ongoing

consolidation in the industry, 28 more was needed to ensure that the agency has the opportunity to

review any new JAB acquisitions in concentrated markets. The Commission’s order includes

forward-looking provisions that will curb the ability of JAB to engage in future anticompetitive

dealmaking across the United States, including a first-of-its-kind nationwide remedy that serves

as a notice to other companies contemplating unlawful transactions. The Commission will not

hesitate to identify and impose broad relief to protect Americans and deter illegal activity now

and in the future.

Key Initiatives to Strengthen Our Merger Enforcement Tools

Over the past year, we have been examining how we can better harness our tools to

further strengthen our ability to detect, deter, and stop illegal mergers. In January 2022, together

with the Department of Justice, we began the process of revising our merger guidelines. 29 This

important guidance explains the analytical techniques, practices, and enforcement policies used

by the federal antitrust agencies in reviewing mergers. It also informs our staff reviewing

proposed mergers, market participants considering whether to pursue mergers, and courts

adjudicating merger challenges. Unfortunately, empirical evidence shows that our approach has

led to underenforcement and markets that are more concentrated and less dynamic. Our goal in

pursuing the current revision of the merger guidelines is to ensure that our guidelines accurately

Press Release, Fed. Trade Comm’n, FTC Acts to Protect Pet Owners from Private Equity Firm’s Anticompetitive

Acquisition of Veterinary Services Clinics (Jun. 13, 2022), https://www.ftc.gov/news-events/news/pressreleases/2022/06/ftc-acts-protect-pet-owners-private-equity-firms-anticompetitive-acquisition-veterinary-services;

Press Release, Fed. Trade Comm’n, FTC Takes Second Action Against JAB Consumer Partners to Protect Pet

Owners from Private Equity Firm’s Rollup of Veterinary Services Clinics (Jun. 29, 2022),

https://www.ftc.gov/news-events/news/press-releases/2022/06/ftc-takes-second-action-against-jab-consumerpartners-protect-pet-owners-private-equity-firms-rollup-of-veterinary-services-clinics.

Press Release, Fed. Trade Comm’n, FTC Requires Veterinary Service Providers Compassion First and National

Veterinary Associates to Divest Assets in Three Local Markets (Feb. 14, 2020), https://www.ftc.gov/newsevents/news/press-releases/2020/02/ftc-requires-veterinary-service-providers-compassion-first-national-veterinaryassociates-divest.

Ross Kelly, Pandemic Hastens Ongoing Trend in Veterinary Consolidation, VINNEWS (Dec. 30, 2021) (“Frenetic

merger activity among veterinary hospitals in 2021 has lifted the market share of corporate consolidators in the

United States to close to 50% of all companion animal practice revenue by at least one estimate, as the pandemic

spurs demand for pet-care services.”), https://news.vin.com/default.aspx?pid=210&Id=10652228.

Press Release, Fed. Trade Comm’n, Federal Trade Commission and Justice Department Seek to Strengthen

Enforcement Against Illegal Mergers (Jan. 18, 2022), https://www.ftc.gov/news-events/news/pressreleases/2022/01/federal-trade-commission-justice-department-seek-strengthen-enforcement-against-illegal-mergers.

reflect modern commercial realities, are faithful to our statutory mandate, and are administrable

and predictable.

The FTC and DOJ are also working on ensuring that we can more readily detect

potentially problematic deals. Pursuant to the Hart-Scott-Rodino Act of 1976, the federal

antitrust agencies issue rules to ensure that we receive the information we need to be able to

identify anticompetitive mergers. We periodically consider how the rules need to be updated to

best facilitate that, and such an effort is now underway. We are currently engaged in a thorough

review of the information that market participants currently submit to us and an assessment of

the additional information we need to most effectively and efficiently identify transactions that

warrant a deeper investigation. Once we have identified the set of information needed, we will

initiate a Commission rulemaking requiring merging parties to submit upfront probative

information about each proposed transaction, increasing the efficiency with which agency staff

can determine whether a proposed deal is likely to prove unlawful. 30

Targeting Anticompetitive Conduct for Maximum Impact

Despite a heavy merger workload, the FTC continues to maintain and develop a robust

program to identify and stop anticompetitive activity outside of the merger context. Specifically,

the FTC is orienting its limited enforcement resources around targeting and rectifying root

causes to avoid a whack-a-mole approach that imposes significant enforcement burden with few

long-term benefits. We are also ensuring that our work is tackling the most significant harms

across markets, particularly by dominant firms whose business practices affect many Americans.

As part of this strategy, the FTC continues to scrutinize digital markets, recognizing that

distinct features of digital technologies have ushered in new market dynamics and business

strategies that require us to update our enforcement approach. As the Subcommittee is well

aware, dominant digital platforms have captured control over key arteries of commerce and

communications in ways that can undermine competition. The FTC’s investigations in digital

markets recognize the critical role of data, network externalities, moat building strategies, and

other key factors to make sure that our enforcement is reflecting commercial realities.

Notably, last year the FTC successfully amended its complaint against Facebook (d/b/a

Meta) in a lawsuit that, in addition to other forms of relief, seeks the divestment of Instagram and

WhatsApp. 31 The amended complaint placed greater emphasis on the competitive importance of

data and noted that privacy degradation can constitute an antitrust harm—a fact that the court

Under current case law, the FTC is prevented from disclosing information filed pursuant to the HSR Act with

state antitrust enforcers. See Lieberman v. FTC, 771 F.2d 32 (2d Cir. 1985); Mattox v. FTC, 752 F.2d 116 (5th Cir.

1985). This can create a meaningful barrier to cooperation with the states. Legislation adding a statutory exemption

to the HSR Act that would specifically allow disclosure of relevant information to Attorney Generals could foster

enhanced cooperation.

Press Release, Fed. Trade Comm’n, FTC Alleges Facebook Resorted to Illegal Buy-or-Bury Scheme to Crush

Competition After String of Failed Attempts to Innovate (Aug. 19, 2021),

https://www.ftc.gov/newsevents/news/press-releases/2021/08/ftc-alleges-facebook-resorted-illegal-buy-or-buryscheme-crush-competitionafter-string-failed.

also acknowledged. In January of this year, the federal court denied Facebook’s motion to

dismiss the FTC’s case and the lawsuit is ongoing. 32

The Commission is also prioritizing action against business practices that unlawfully

restrict consumers’ ability to repair their products, costing them more over the long term. In July

2021, the FTC unanimously voted to issue a statement signaling our intent to ramp up law

enforcement against unlawful repair restrictions that prevent small businesses, workers,

consumers, and even government entities from fixing their own products. 33 As detailed in the

Commission’s report to Congress, there is scant evidence to support manufacturers’ justifications

for repair restrictions. 34 While efforts by dominant firms to restrict repair markets are not new,

changes in technology and more prevalent use of software have created fresh opportunities for

companies to limit independent repair. The policy statement encourages reporting of violations

of the Magnuson-Moss Warranty Act, which prohibits, among other things, tying a consumer’s

product warranty to the use of a specific service provider or product, unless the FTC has issued a

waiver or the service or product is provided free of charge. 35 Further, the policy statement noted

that the Commission will target repair restrictions that violate the antitrust laws or the FTC Act’s

prohibitions on unfair or deceptive acts or practices. This multi-pronged approach allows the

FTC to use the full range of its expertise when seeking to enforce the law. Since issuing the

statement, a number of large tech firms have amended their repair policies 36 and the FTC has

pursued enforcement action against several major companies that had imposed restrictive repair

policies. 37

The FTC continues to prioritize deterring and stopping anticompetitive conduct in the

health care sector, and a recent case underscores the FTC’s willingness to seek individual

liability for antitrust violations when appropriate. In January 2020, the FTC and the New York

Attorney General sued “Pharma Bro” Martin Shkreli, his company, Vyera Pharmaceuticals, and

others alleging that the company and its leaders raised the price of a life-saving drug by more

FTC v. Facebook, Inc., 581 F. Supp. 3d 34 (D.D.C. 2022).

Press Release, Fed. Trade Comm’n, FTC to Ramp Up Law Enforcement Against Illegal Repair Restrictions (Jul.

21, 2021), https://www.ftc.gov/news-events/news/press-releases/2021/07/ftc-ramp-law-enforcement-against-illegalrepair-restrictions.

Press Release, Fed. Trade Comm’n, FTC Report to Congress Examines Anti-Competitive Repair Restrictions,

Recommends Ways to Expand Consumers’ Repair Options (May 6, 2021), https://www.ftc.gov/newsevents/news/press-releases/2021/05/ftc-report-congress-examines-anti-competitive-repair-restrictions-recommendsways-expand-consumers.

Magnuson-Moss Warranty Act, 15 U.S.C. 50 §§ 2301-2312.

See, e.g., Press Release, Apple, Apple Announces Self Service Repair (Nov. 17, 2021),

https://www.apple.com/newsroom/2021/11/apple-announces-self-service-repair/; Press Release, Samsung

Electronics Am., Samsung Expands Customer-First Care Experience with New Self-Repair Program (Mar. 31,

2022), https://news.samsung.com/us/samsung-self-repair-program-ifixit-customer-first-care-experience/; Ana

Corrales, Coming Soon: More Ways to Repair Your Pixel Phone, Google Sustainability Blog (Apr. 8, 2022),

https://blog.google/outreach-initiatives/sustainability/pixel-phone-repairs/.

Press Release, Fed. Trade Comm’n, FTC Takes Action Against Harley-Davidson and Westinghouse for Illegally

Restricting Customers’ Right to Repair (Jun. 23, 2022), https://www.ftc.gov/news-events/news/pressreleases/2022/06/ftc-takes-action-against-harley-davidson-westinghouse-illegally-restricting-customers-right-repair0; Press Release, Fed. Trade Comm’n, FTC Takes Action Against Weber for Illegally Restricting Customers’ Right

to Repair (Jul. 7, 2022), https://www.ftc.gov/news-events/news/press-releases/2022/07/ftc-takes-action-againstweber-illegally-restricting-customers-right-repair.

than 4000% and then engaged in unlawful conduct to maintain that revenue. 38 In January 2022,

the federal court held Shkreli liable for antitrust claims brought by the FTC and seven state

enforcers. Finding that Shkreli’s conduct was egregious, deliberate, repetitive, long-running, and

ultimately dangerous, the Court imposed a lifetime ban on Shkreli from participating in the

pharmaceutical industry and found him liable for $64.6 million in disgorgement. 39 The federal

court’s decision to ban Shkreli for life from the pharmaceutical industry is a victory for

Americans and should signal to corporate executives that they may be held personally liable for

antitrust violations that they direct and may be banned for life from certain industries.

Additionally, the FTC’s litigation against Surescripts, an e-prescription giant, remains

ongoing. 40 The FTC alleges that Surescripts intentionally kept e-prescription customers from

using additional platforms (a practice known as multi-homing) through their use of

anticompetitive exclusivity agreements, threats, and other exclusionary tactics. That conduct

resulted in the exclusion of all meaningful competition in prescription routing and eligibility,

leading to higher prices, reduced innovation, lower output, and no customer choice.

Preventing Harm to Workers

The Commission has a legal obligation to ensure that we are using our tools and

authorities to tackle unfair methods of competition that affect workers. Last December, the FTC

and DOJ hosted a two-day workshop to explore a wide range of competition issues affecting

labor markets and the welfare of workers. 41 In March, the Treasury Department issued a report

on the state of labor market competition, highlighting several ways in which either market

concentration or unfair methods of competition is hurting workers. 42 The report notes that many

labor markets in America display very high levels of concentration, and mergers can make this

concentration even worse, further lowering wages, reducing benefits, and degrading working

conditions. 43 As part of our initiative to revise the merger guidelines, the FTC and DOJ solicited

Press Release, Fed. Trade Comm’n, FTC and NY Attorney General Charge Vyera Pharmaceuticals, Martin

Shkreli, and Other Defendants with Anticompetitive Scheme to Protect a List-Price Increase of More than 4,000

Percent for Life-Saving Drug Daraprim (Jan. 27, 2020), https://www.ftc.gov/news-events/news/pressreleases/2020/01/ftc-ny-attorney-general-charge-vyerapharmaceuticals-martin-shkreli-other-defendantsanticompetitive.

Statement of Chair Lina M. Khan on the Ruling by Judge Denise L. Cote in Federal Trade Commission et al. v.

Vyera Pharms., LLC et al. (Jan. 14, 2022), https://www.ftc.gov/news-events/news/press-releases/2022/01/statementchair-lina-m-khan-ruling-judge-denise-l-cote-federal-trade-commission-et-al-v-vyera.

Complaint, FTC v. Surescripts, Inc., No. 1:19-cv-01080 (D.D.C., Apr. 24, 2019),

https://www.ftc.gov/system/files/documents/cases/surescripts_redacted_complaint_4-24-19.pdf.

Press Release, Fed. Trade Comm’n, FTC and DOJ Announce Agenda for Dec. 6 and 7 Workshop, Making

Competition Work: Promoting Competition in Labor Markets (Dec. 1, 2021), https://www.ftc.gov/newsevents/news/press-releases/2021/12/ftc-doj-announce-agenda-dec-6-7-workshop-making-competition-workpromoting-competition-labor-markets.

DEP’T OF TREASURY, THE STATE OF LABOR MARKET COMPETITION (Mar. 2022),

https://home.treasury.gov/system/files/136/State-of-Labor-Market-Competition-2022.pdf.

In the Commission’s recent challenge of a hospital merger in Rhode Island, Chair Khan and Commissioner

Slaughter would have supported a Clayton Act claim regarding the potential effect of the proposed transaction on

competition in the relevant labor markets. Concurring Statement of Commissioner Slaughter and Chair Khan

regarding FTC and State of Rhode Island v. Lifespan Corporation and Care New England, at 1-2 (Feb. 17, 2022),

https://www.ftc.gov/public-statements/2022/02/concurring-statement-commissioner-slaughter-chair-khanregardingftc-state.

comments on whether our current enforcement approach is fully accounting for relevant harms to

workers and labor market competition. 44

Notably, the Commission is closely scrutinizing the growing use of non-compete clauses

throughout the economy. For example, we have already taken action against the use of noncompete clauses found in merger agreements that would operate as barriers to entry against

future competitors. The Commission’s order against DaVita, Inc., a large provider of dialysis

services, prevents the company from entering into agreements with physicians that would restrict

their ability to work for a competitor. 45 The FTC is also exploring the use of its rulemaking

authority to limit non-compete clauses that restrict workers’ post-employment choices.

II.

Resource Constraints and Legal Challenges

Despite the many successes highlighted above, it is worth highlighting a couple of

significant headwinds the Commission faces. First, as our work illustrates, Congress has charged

the FTC with policing unlawful conduct across a broad swath of the U.S. economy—in sectors

ranging from technology, energy, and retail to pharmaceuticals and health care. Although we are

at the front lines of many of the most pressing issues Americans face today, the number of fulltime employees at the FTC is about two-thirds of what it was at the beginning of 1980, while the

nation’s GDP has increased six-fold. Demands on the Commission continue to grow as we

receive more consumer complaints, 46 review more corporate mergers, 47 conduct more complex

and expensive litigation, and respond to burgeoning requests for research and investigation of

various economic sectors. While we constantly strive to enforce the law to the best of our

capabilities, there is no doubt that—despite the increased appropriations Congress has provided

in recent years—we continue to lack sufficient funding. We seek to work with Congress to

ensure that the Commission has the resources and tools it needs to vigorously protect the

American people from unlawful mergers and conduct. 48

Request for Information on Merger Enforcement, FTC-2022-0003, https://www.regulations.gov/docket/FTC2022-0003 (last visited Sep. 9, 2022).

Press Release, Fed. Trade Comm’n, FTC Imposes Strict Limits on DaVita, Inc.’s Future Mergers Following

Proposed Acquisition of Utah Dialysis Clinics (Oct. 25, 2021), https://www.ftc.gov/newsevents/pressreleases/2021/10/ftc-imposesstrict-limits-davita-incs-future-mergers-following. Although not arising in the

employment context, the Commission also prohibited fuel supply company GPM from enforcing overly broad noncompete provisions contained in its merger agreement to acquire fuel stations from Corrigan. Those provisions went

far beyond those necessary to protect any goodwill GPM might hope to acquire with the Corrigan stations. In

particular, they applied to areas much broader than the local markets served by the purchased assets, effectively

serving as an illegal market allocation agreement between potential competitors. To ensure robust competition in the

affected markets for fuel in Michigan, the Commission’s order prohibits GPM from enforcing the non-compete

restrictions. Press Release, Fed. Trade Comm’n, FTC Approves Final Order Restoring Competitive Markets for

Gasoline and Diesel in Michigan and Ohio (Aug. 9, 2022), https://www.ftc.gov/news-events/news/pressreleases/2022/08/ftc-approves-final-order-restoring-competitive-markets-gasoline-diesel-michigan-ohio.

For example, over the past five years, annual consumer complaints we receive has increased from 2.9 to 5.7

million. Consumer fraud reports alone increased from 1.3 to 2.8 million and reported consumer fraud losses

exploded from $1.1 billion in 2017 to over $5 billion in 2021.

As noted above, merger filings are at or near all-time highs, stretching our ability to screen the filings for

problematic deals.

See, e.g., Concurring Statement of Commissioner Rebecca Kelly Slaughter, Joined by Chair Lina M. Khan

Regarding the 2022 Revised Clayton Act Thresholds (Jan. 24, 2022),

Second, the FTC faces several significant legal challenges to statutory authorities that

have been important tools in executing our dual competition and consumer protection missions.

The Supreme Court issued its decision in AMG Capital Management v. FTC in April 2021, 49

upending decades of lower court rulings that had held that Section 13(b) of the FTC Act 50

enabled the FTC to pursue equitable monetary relief in federal court. Practically, AMG ended the

FTC’s ability to seek monetary relief for consumers in competition matters. Most concretely, this

has already affected our work in the pharmaceutical industry. In the sham patent litigation case

the FTC brought against AbbVie, the district court awarded $493 million in monetary relief to

consumers harmed by inflated drug prices resulting from AbbVie’s illegal conduct. 51 Previewing

what the Supreme Court would ultimately make final in AMG, the Third Circuit held that the

district court lacked authority under Section 13(b) to grant monetary relief to consumers. 52

Defendants were able to keep their nearly $500 million in illegal proceeds, and consumers

received nothing. 53 In consumer protection cases, while Section 19 of the FTC Act authorizes the

Commission to seek monetary relief for some consumers in federal court after an administrative

proceeding, legal challenges to agency administrative processes have made it more difficult for

the Commission to use this mechanism for returning money to consumers harmed by illegal

conduct. And in competition cases, the Commission cannot use Section 19 at all, wholly

foreclosing the ability of the Commission to obtain monetary relief for violations of the antitrust

laws. To enable the Commission to continue to execute on its mission, all current Commissioners

have repeatedly called on Congress to address this situation and restore the FTC’s full authority

to return money to injured consumers.

III.

Policy Development and Research Agenda

Alongside enforcement, the Commission is making long-term investments to maximize

the impact of our policy and research work. To tackle the pressing issues of today and tomorrow,

we are broadening our institutional skillsets to ensure we are fully grasping market realities,

especially as the economy becomes increasingly digitized. For example, as part of the

https://www.ftc.gov/system/files/documents/public_statements/1600207/p859910hsrthresholdskhanslaughterstateme

nt_0.pdf.

AMG Capital Mgmt., LLC v. FTC, 141 S.Ct. 1341 (2021).

15 U.S.C. § 53(b).

FTC v. AbbVie Inc., 107 F. Supp. 3d 428 (E.D. Pa. 2015).

FTC v. AbbVie Inc., 976 F.3d 327, 379 (3d Cir. 2020).

In addition to litigated cases, the FTC’s ability to obtain monetary relief has yielded substantial disgorgement in

connection with settlements as well. For example, in 2015, the Commission recovered $1.2 billion in ill-gotten gains

from Teva Pharmaceuticals, Inc. as part of a settlement resolving the Commission’s antitrust suit charging Teva

subsidiary Cephalon with illegally blocking generic competition to its blockbuster sleep-disorder drug Provigil.

Press Release, Fed. Trade Comm’n, FTC Settlement of Cephalon Pay for Delay Case Ensures $1.2 Billion in IllGotten Gains Relinquished; Refunds Will Go To Purchasers Affected By Anticompetitive Tactic (May 28, 2015),

https://www.ftc.gov/news-events/news/press-releases/2015/05/ftc-settlement-cephalon-pay-delay-case-ensures-12billion-ill-gotten-gains-relinquished-refunds-will. The FTC also obtained $100 million in disgorgement from

drugmaker Mallinckrodt to settle FTC charges that Mallinckrodt made a killer acquisition after buying the rights to a

drug that threatened its monopoly in the U.S. market for adrenocorticotropic hormone (ACTH) drugs that treat

seriously ill infants. Press Release, Fed. Trade Comm’n, Mallinckrodt Will Pay $100 Million to Settle FTC, State

Charges It Illegally Maintained its Monopoly of Specialty Drug Used to Treat Infants (Jan. 18, 2017),

https://www.ftc.gov/news-events/news/press-releases/2017/01/mallinckrodt-will-pay-100-million-settle-ftc-statecharges-it-illegally-maintained-its-monopoly.

Commission’s prioritization of digital markets, in the last year we onboarded a number of

renowned technologists to provide additional expertise to our staff in cutting-edge litigation and

horizon-scanning efforts, as well as in pursuit of a robust research agenda.

Even amid the tidal wave of merger filings and scorched-earth tactics used by highly

resourced parties during investigations and in litigation, we have continued to prioritize making

substantial investments to remain faithful to our mandate to engage in policy and research

development pursuant to Section 6 of the FTC Act. Through Section 6(b) of the FTC Act,

Congress gave the agency broad investigative powers to conduct market-wide inquiries and keep

pace with new business practices and market trends.

From its inception, the FTC has used its 6(b) authority to shed light on problems in major

sectors, such as the massive study of public utility holding companies in the 1930s that exposed

rampant financial fraud and led to the creation of the Securities and Exchange Commission,54 or

to provide a factual foundation to revamp merger analysis and target unlawful conduct in

pharmaceutical markets. 55 More recently, the FTC issued a report on non-reportable acquisitions

by the nation’s five largest technology companies. 56 The report captures the extent to which

these firms have devoted tremendous resources to acquiring start-ups, patent portfolios, and

entire teams of technologists, largely outside the purview of federal enforcers. The report

highlighted ways in which the existing HSR reporting thresholds, by using deal size as a rough

proxy for the potential competitive significance of an acquisition, may provide an incomplete

and inadequate mechanism for checking unlawful deals in digital markets.

The Commission is working to complete a report from its 6(b) study of ongoing supply

chain disruptions. 57 As the recent shortage of baby formula illustrates, in industries dominated by

a few large suppliers, a single plant closure can have ripple effects throughout the supply chain,

leaving some Americans struggling to find essential products. Last November, the Commission

used its 6(b) authority to order nine large retailers, wholesalers, and consumer goods suppliers to

provide detailed information needed to better understand both the factors that have contributed to

supply chain disruptions and how they may have contributed to bottlenecks, shortages,

anticompetitive practices, or rising consumer prices. We are endeavoring to complete this timely

study as quickly as possible.

Kelly Signs, FTC Milestones: Making the Case for Reform of Public Utility Holding Company Laws, FTC

COMPETITION MATTERS BLOG (Nov. 18, 2014), https://www.ftc.gov/enforcement/competition-matters/2014/11/ftcmilestones-making-case-reform-public-utility-holding-company-laws.

See Prepared Remarks of Jonathan Nuechterlein, General Counsel, Fed. Trade Comm’n: How the FTC Works:

Lessons from the Commission’s Supreme Court Trifecta (Mar. 20, 2015) (discussing the impact of 6(b) studies on

the rulings of the Supreme Court),

https://www.ftc.gov/system/files/documents/public_statements/632081/150320adminlawreview.pdf.

Press Release, Fed. Trade Comm’n, FTC Staff Presents Report on Nearly a Decade of Unreported Acquisitions

by the Biggest Technology Companies (Sep. 15, 2021), https://www.ftc.gov/news-events/news/pressreleases/2021/09/ftc-staff-presents-report-nearly-decade-unreported-acquisitions-biggest-technology-companies.

Press Release, Fed. Trade Comm’n, FTC Launches Inquiry into Supply Chain Disruptions (Nov. 29, 2021),

https://www.ftc.gov/news-events/news/press-releases/2021/11/ftc-launches-inquiry-supply-chain-disruptions.

In June, the Commission authorized a 6(b) study of the contracting practices of Pharmacy

Benefits Managers. 58 After seeking and receiving public input from a wide variety of

stakeholders, 59 the Commission has issued orders to the largest PBMs to obtain nonpublic

information about their operations, including negotiations with manufacturers over formulary

design and rebates, as well as fees paid to and by pharmacies who contract with PBMs to provide

dispensing services. This comprehensive study will shine a light on the opaque operations of

these large pharmacy middlemen who can dictate the pricing and access to life-saving drugs for

so many Americans. In addition to these studies, the Commission has several other 6(b) studies

underway. 60 These studies help guide FTC enforcement efforts as well as fulfill its unique

mission as an expert agency that studies market trends and recommends solutions for

policymakers. 61

IV.

Democratizing the Agency

In addition to the substantive reforms highlighted above, the Commission is also

changing how it interfaces with the public by providing greater insight into the Commission’s

work and greater opportunity for public participation.

Since July 2021, the Commission has held twelve open meetings, providing a platform

for Commissioners to hear directly from a broad range of stakeholders, including individuals

directly affected by the decisions we make. Anyone can sign up to speak, and they need not be

represented by a lawyer. These meetings also provide the public with an opportunity to see the

Press Release, Fed. Trade Comm’n, FTC Launches Inquiry Into Prescription Drug Middlemen Industry (Jun. 7,

2022), https://www.ftc.gov/news-events/news/press-releases/2022/06/ftc-launches-inquiry-prescription-drugmiddlemen-industry. Consistent with the competition concerns that prompted the PBM study, the Commission

issued a “Policy Statement on Rebates and Fees in Exchange for Excluding Lower Cost Products,” putting the drug

industry on notice that paying rebates and fees to exclude competition from formularies violates the antitrust laws.

Press Release, Fed. Trade Comm’n, FTC to Ramp Up Enforcement Against Any Illegal Rebate Schemes, Bribes to

Prescription Drug Middlemen that Block Cheaper Drugs (Jun. 16, 2022), http://www.ftc.gov/newsevents/news/press-releases/2022/06/ftc-ramp-up-enforcement-against-illegal-rebate-schemes.

Press Release, Fed. Trade Comm’n, FTC Requests Public Comments on the Impact of Pharmacy Benefit

Managers’ Practices, (Feb. 24, 2022), https://www.ftc.gov/news-events/news/press-releases/2022/02/ftc-requestspublic-comments-impact-pharmacy-benefit-managers-practices.

Press Release, Fed. Trade Comm’n, FTC Issues Orders to Nine Social Media and Video Streaming Services

Seeking Data About How They Collect, Use, and Present Information (Dec. 14, 2020), https://www.ftc.gov/newsevents/news/press-releases/2020/12/ftc-issues-orders-nine-social-media-video-streaming-services-seeking-dataabout-how-they-collect-use; Press Release, Fed. Trade Comm’n, FTC to Study the Impact of Physician Group and

Healthcare Facility Mergers (Jan. 14, 2021), https://www.ftc.gov/news-events/news/press-releases/2021/01/ftcstudy-impact-physician-group-healthcare-facility-mergers; Press Release, Fed. Trade Comm’n, FTC to Study the

Impact of COPAs (Oct. 21, 2019), https://www.ftc.gov/news-events/news/press-releases/2019/10/ftc-study-impactcopas.

Press Release, Fed. Trade Comm’n, The Federal Trade Commission’s First Report on E-Cigarette Sales and

Advertising Reveals Disturbing Trends Affecting the Health of Young Americans (Mar. 17, 2022),

https://www.ftc.gov/news-events/news/press-releases/2022/03/federal-trade-commissions-first-report-e-cigarettesales-advertising-reveals-disturbing-trends; Press Release, Fed. Trade Comm’n, FTC Staff Report Finds Many

Internet Service Providers Collect Troves of Personal Data, Users Have Few Options to Restrict Use (Oct. 21,

2021), https://www.ftc.gov/news-events/news/press-releases/2021/10/ftc-staff-report-finds-many-internet-serviceproviders-collect-troves-personal-data-users-have-few; Press Release, Fed. Trade Comm’n, New FTC Staff Report

Outlines Impact of Fraud on Communities of Color (Oct. 15, 2021), https://www.ftc.gov/news-events/news/pressreleases/2021/10/new-ftc-staff-report-outlines-impact-fraud-communities-color.

Commission deliberate on pressing issues affecting their daily lives, ranging from the

Commission’s policy on privacy breaches involving healthcare information to our work to halt

Made-in-USA fraud. 62

We have also issued Requests for Information to seek the public’s help in identifying

contracting practices that undermine open and fair competition, 63 new ideas for analyzing

pharmaceutical mergers, 64 and the impact of non-compete clauses on workers. 65 Together with

the Antitrust Division’s AAG Kanter, we hosted public listening sessions in conjunction with our

merger guidelines revision project to hear directly from those affected by mergers in critical

sectors, such as food and agriculture, healthcare, media and entertainment, and technology. 66 The

goal is to ensure that we receive input from those with direct experience with the markets we

cover so that their first-hand understanding can help guide our policies and priorities as we

enforce the law.

Collaboration Across Government to Promote Fair Competition

The FTC recognizes the value and importance of deepening our collaboration and

partnerships with other government entities. These relationships act as force multipliers to

promote fair competition throughout our economy.

In July 2021, the President underscored the importance of government’s role in

promoting competition throughout the economy when he issued an Executive Order on

Competition, 67 proposing that the FTC and DOJ partner with agencies across the federal

government in pursuit of a whole-of-government approach to competition policy. Consistent

with that Order, the antitrust agencies provided input to two Treasury reports, one addressing

competition issues related to the sale and distribution of alcohol 68 and another on labor market

competition. Ongoing work with the USDA, Department of Commerce, and other agencies will

result in other public reports this year. In July, the FTC entered into an agreement with the

National Labor Relations Board that lays out how the two agencies will work together on key

issues such as labor market concentration, one-sided contract terms, and labor developments in

For summaries of the Commission’s open meetings, see https://www.ftc.gov/news-events/events/open-meetings.

See Request for Public Comment Regarding Contract Terms That May Harm Fair Competition, FTC-2021-0036,

https://www.regulations.gov/docket/FTC-2021-0036 (last accessed Sep. 9, 2022).

See Press Release, Fed. Trade Comm’n, Multilateral Pharmaceutical Merger Task Force Seeks Public Input (May

11, 2021), http://www.ftc.gov/system/files/attachments/press-releases/multilateral-pharmaceutical-merger-taskforce-seeks-public-input/final_ftc_notice_for_multilateral_pharmaceutical_merger_task_force.pdf.

See Making Competition Work: Promoting Competition in Labor Markets, FTC-2021-0057,

https://www.regulations.gov/docket/FTC-2021-0057 (last accessed Sep. 9, 2022).

Press Release, Fed. Trade. Comm’n, FTC and Justice Department Launch Listening Forums on Firsthand Effects

of Mergers and Acquisitions (Mar. 17, 2022), https://www.ftc.gov/news-events/news/press-releases/2022/03/ftcjustice-department-launch-listening-forums-firsthand-effects-mergers-acquisitions.

Exec. Order No. 14,036, 86 Fed. Reg. 36,987 (July 14, 2021). See also Fact Sheet: Executive Order on Promoting

Competition in the American Economy, THE WHITE HOUSE (Jul. 9, 2021), https://www.whitehouse.gov/briefingroom/statements-releases/2021/07/09/fact-sheet-executive-orderonpromoting-competition-in-the-americaneconomy.

DEP’T OF TREASURY, COMPETITION IN THE MARKETS FOR BEER, WINE, AND SPIRITS (Feb. 2022),

https://home.treasury.gov/system/files/136/Competition-Report.pdf.

the “gig economy.” 69 Overall, these collaborations have deepened our relationships with sector

regulators, providing a basis for future coordination and cooperation.

Other opportunities for deepening our partnerships lie with both the state attorneys

general and in the international arena. We regularly engage with our state and international

enforcement partners on both policy initiatives as well as enforcement matters. This includes

filing cases jointly with state attorneys general 70 as well as cooperation on many matters with

foreign antitrust agencies. 71 The course-correction we are on has made these partnerships even

more critical as we learn and benefit from the experience of our domestic and overseas

counterpart agencies. Reflecting the importance of this shared learning, we and the DOJ

convened an Enforcers Summit earlier this year to collect ideas from our state and international

peers related to our merger guidelines revision project. 72

VI.

Conclusion

Thank you for this opportunity to share highlights of the progress the Commission has

made as we continue to work to ensure that our approach to competition enforcement and policy

best positions us to tackle the many competition challenges we currently face. The Commission

looks forward to continuing to work with the Subcommittee and Congress to ensure that the FTC

is best positioned to faithfully discharge its statutory obligations and fully deliver on its mission.

Press Release, Fed. Trade Comm’n, Federal Trade Commission, National Labor Relations Board Forge New

Partnership to Protect Workers from Anticompetitive, Unfair, and Deceptive Practices (Jul. 19, 2022),

http://www.ftc.gov/news-events/news/press-releases/2022/07/federal-trade-commission-national-labor-relationsboard-forge-new-partnership-protect-workers.

See, e.g., Press Release, Fed. Trade Comm’n, FTC and Rhode Island Attorney General Step in to Block Merger of

Rhode Island’s Two Largest Healthcare Providers (Feb. 17, 2022), https://www.ftc.gov/news-events/news/pressreleases/2022/02/ftc-rhode-island-attorney-general-step-block-merger-rhode-islands-two-largest-healthcareproviders; Press Release, Fed. Trade Comm’n, FTC and NY Attorney General Charge Vyera Pharmaceuticals,

Martin Shkreli, and Other Defendants with Anticompetitive Scheme to Protect a List-Price Increase of More than

4,000 Percent for Life-Saving Drug Daraprim (Jan. 27, 2020), https://www.ftc.gov/news-events/news/pressreleases/2020/01/ftc-ny-attorney-general-charge-vyerapharmaceuticals-martin-shkreli-other-defendantsanticompetitive.

This includes our review of the now abandoned merger between Nvidia and Arm, where we cooperated closely

with agencies in many jurisdictions, including the European Union, Japan, South Korea, and the United Kingdom.

Press Release, Fed. Trade Comm’n, FTC Sues to Block $40 Billion Semiconductor Chip Merger (Dec. 2, 2021),

https://www.ftc.gov/news-events/news/press-releases/2021/12/ftc-sues-block-40-billion-semiconductor-chipmerger

Press Release, Fed. Trade Comm’n, Federal Trade Commission and Justice Department to Hold Joint Spring

Enforcers Summit (Mar. 10, 2022), https://www.ftc.gov/news-events/news/press-releases/2022/03/federal-tradecommission-justice-department-hold-joint-spring-enforcers-summit.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.