Sen. Lee, Colleagues Question DOJ, FTC Antitrust Enforcement

October 5, 2021

WASHINGTON – Sens. Mike Lee (R-UT), Chuck Grassley (R-IA), and Reps. Ken Buck (R-CO), and Jim Jordan (R-OH) sent a letter to Richard Powers, Acting Assistant Attorney General for the Antitrust Division, and Lina Kahn, Chairwoman of the Federal Trade Commission questioning the dual antitrust enforcers’ increasingly divergent standards in enforcing the law. 


Both the Department of Justice (DOJ) and the Federal Trade Commission (FTC) have authority to review mergers and acquisitions and enforce antitrust law generally.  When their enforcement standards diverge, American businesses and citizens can suffer.


The Senators and Congressmen wrote in the letter, “We are worried that your agencies appear to be applying the law unequally to similarly situated respondents, raising serious concerns about the fairness of America’s antitrust enforcement regime. A lack of alignment between DOJ and FTC in antitrust enforcement already has been a problem during previous administrations. We are disappointed to see that trend accelerating under President Biden’s leadership.”


Of the letter, Sen. Lee said, “When Congress gave DOJ and FTC shared merger enforcement powers under the Clayton Act, it never imagined a world in which the two agencies would apply two different legal standards—the very definition of arbitrary and capricious. Sadly, thanks to Chairwoman Khan’s FTC, we live in that world now. It’s time for Congress to fix its century-old mistake and reconsolidate antitrust enforcement at the Department of Justice.”


Sen. Grassley said, “When two agencies are looking into essentially the same facts, the law should be applied in a uniform manner. That’s just common sense and fair. But the dual bureaucracies at the FTC and the Justice Department Antitrust Division have had different approaches in how to enforce our antitrust laws. Recently the FTC has diverged even further, raising serious concerns for businesses and consumers. We ought to know if the administration is going to make this problem worse.”


Rep. Buck said, “Congress should pass the package of Big Tech bills to give the FTC more resources and tools to go after the worst actors in our economy. However, the FTC also needs to hold itself to the highest legal and ethical standards as it is a law enforcement agency. Due process protections are vital for all entities involved in our justice system and the FTC should make sure it is honoring the protections that have historically been in place. Not all companies are bad actors and they shouldn’t be treated as such.” 


Rep. Jordan said, The Biden FTC’s abuse of its power to promote radical leftist goals shows why Congress should not give more authority to this rogue agency.”


The full text of the letter can be read here.