Congress' Power To Alter Antitrust Laws

Congress has the power to change antitrust laws, and has done so on several occasions since passing the first antitrust law, the Sherman Act, in 1890. In 1914, Congress passed two additional antitrust laws: the Clayton Act and the Federal Trade Commission Act, which created the FTC. More recently, the House Judiciary Committee advanced six bills in June 2021 that focused on the anticompetitive impacts of self-preferencing, mergers and acquisitions, data accumulation, and network effects related to digital platforms.

The Competition and Antitrust Law Enforcement Reform Act of 2021

Congress has the power to change antitrust laws. In 1890, Congress passed the first antitrust law, the Sherman Act, which was a "comprehensive charter of economic liberty aimed at preserving free and unfettered competition as the rule of trade". In 1914, Congress passed two additional antitrust laws: the Clayton Act and the Federal Trade Commission Act, which created the FTC.

The Clayton Act

Congress passed the Clayton Act in 1914, which outlawed using mergers and acquisitions to achieve monopolies and created an antitrust law exemption for collective bargaining. The Clayton Act was one of two antitrust laws passed by Congress in 1914, the other being the Federal Trade Commission Act, which created the FTC. The Clayton Act was a response to the Supreme Court's decision in Standard Oil, which was seen as an attempt to "soften" the Sherman Act and narrow its scope. The Sherman Act was the first antitrust law passed by Congress in 1890 and was described as a "comprehensive charter of economic liberty aimed at preserving free and unfettered competition as the rule of trade".

Overall, the Clayton Act is an important piece of legislation that has helped to shape U.S. antitrust law and promote competition in the marketplace. By outlawing the use of mergers and acquisitions to achieve monopolies and creating an exemption for collective bargaining, the Clayton Act has played a key role in ensuring that markets remain competitive and that consumers are protected from anticompetitive behaviour.

The Federal Trade Commission Act

Congress can change antitrust laws, and has done so in the past. The first antitrust law was passed by Congress in 1890, the Sherman Act, which was intended to preserve free and unfettered competition as the rule of trade. In 1914, Congress passed two additional antitrust laws: the Federal Trade Commission Act, which created the FTC, and the Clayton Act. The Clayton Act outlawed using mergers and acquisitions to achieve monopolies and created an antitrust law exemption for collective bargaining. The Federal Trade Commission Act created the Federal Trade Commission (FTC) as an independent agency that has shared jurisdiction with the Justice Department over federal civil antitrust enforcement and has the power to prohibit "unfair methods of competition".

The Sherman Act

Congress passed the first antitrust law, the Sherman Act, in 1890 as a "comprehensive charter of economic liberty aimed at preserving free and unfettered competition as the rule of trade". The Sherman Act is a federal statute that prohibits activities that restrict interstate commerce and competition in the marketplace. It outlaws any contract, conspiracy, or combination of business interests in restraint of foreign or interstate trade. The Act also prohibits monopolization or attempts at monopolizing any aspect of interstate trade or commerce and makes the act a felony. The law attempts to prevent the artificial raising of prices by restriction of trade or supply.

In 1914, Congress passed two additional antitrust laws: the Federal Trade Commission Act, which created the FTC, and the Clayton Act. The Clayton Act amended the Sherman Act and outlawed using mergers and acquisitions to achieve monopolies.

In many areas of the world, including the European Union, United Kingdom, South Korea, and Australia, governments are considering new legislation to check the market power of a few dominant technology platforms. The House Judiciary Committee advanced six bills in June 2021 that paralleled many of these recommendations, focusing on the anticompetitive impacts of self-preferencing, mergers and acquisitions, data accumulation, and network effects related to digital platforms.

Anticompetitive behaviour

Congress passed the first antitrust law, the Sherman Act, in 1890. This was a "comprehensive charter of economic liberty aimed at preserving free and unfettered competition as the rule of trade". Since then, Congress has passed two additional antitrust laws: the Federal Trade Commission Act, which created the FTC, and the Clayton Act, both in 1914. These three core federal antitrust laws are still in effect today, albeit with some revisions.

One way that Congress can address anticompetitive behaviour is by revising existing antitrust laws. For instance, the Competition and Antitrust Law Enforcement Reform Act of 2021 proposed stricter standards for permissible mergers. It prohibited mergers that create an appreciable risk of materially lessening competition or unfairly lowering the prices of goods or wages due to a lack of competition.

Additionally, federal enforcement agencies can investigate and litigate anticompetitive behaviour without a substantial change in antitrust law. This approach was suggested in a set of recommendations published by the House Subcommittee on Antitrust, Commercial, and Administrative Law in October 2020. These recommendations aimed to promote competition in technology markets and targeted the actions of major technology companies, including Alphabet (Google's parent company), Amazon, Apple, and Facebook (now Meta).

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