Taking Stock of Merger Enforcement Under the Biden Administration

By: Diana Moss (Progressive Policy Institute)

Competition stands as the cornerstone of the market system, taking center stage in the U.S. political economy by fostering equitable pricing, wages, and facilitating a spectrum of choices, quality, and innovation that benefit both consumers and laborers. Acting as the arbiters in the market arena, antitrust regulators and the judiciary adjudicate the impact of mergers and business practices on competition, safeguarding market integrity and the democratic principles upon which it thrives.

Aligned with the ethos of prior pro-competition administrations, the Biden administration champions a more assertive approach to merger oversight. However, distinct from its predecessors, the Biden strategy is characterized by antitrust leadership inspired by the Neo-Brandeisian movement, which scrutinizes corporate scale with a focus on anti-monopoly concerns. This divergence has sparked discussions on evaluating the legality of mergers through “bright-line” tests for corporate size versus the conventional consumer welfare standard, which assesses potential adverse impacts on pricing, wages, benefits, and product variety.

In this report by the Progressive Policy Institute (PPI), the Biden administration’s merger enforcement efforts are dissected through the lens of three decades and five different political administrations. The analysis reveals strides in reinvigorating merger oversight in certain aspects, although it also highlights areas where progress may be lacking. Notably, the report does not delve into nuanced indicators of heightened enforcement, such as deterring detrimental consolidation proposals, which, as former Assistant Attorney General Bill Baer observed, should never have materialized beyond the boardroom.

Three key observations emerge from PPI’s analysis of the Biden administration’s merger enforcement record. Firstly, companies are being compelled to abandon anti-competitive mergers at the highest frequency in three decades. Secondly, the pursuit of injunctions to block mergers through litigation in federal courts or administrative tribunals has reached unprecedented levels. However, the administration’s success rate in court falls below historical averages, indicative of a concerted effort yet to yield complete fruition. Lastly, while the Biden administration has demonstrated vigor in certain enforcement realms, it has not matched the level of aggression exhibited by its predecessors during the transition from Republican administrations.

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