This article appears in the February 2023 issue of The American Prospect magazine. Subscribe here.
On July 9, 2021, President Joe Biden signed one of the most sweeping changes to domestic policy since FDR. It was not legislation: His signature climate and health law would take another year to gestate. This was a request that the government get into the business of fostering competition in the U.S. economy again.
Flanked by Cabinet officials and agency heads, Biden condemned Robert Bork’s pro-corporate legal revolution in the 1980s, which destroyed antitrust, leading to concentrated markets, raised prices, suppressed wages, stifled innovation, weakened growth, and robbing citizens of the liberty to pursue their talents. Competition policy, Biden said, “is how we ensure that our economy isn’t about people working for capitalism; it’s about capitalism working for people.”
The executive order outlines a whopping 72 different actions, but with a coherent objective. It seeks to revert government’s role back to that of the Progressive and New Deal eras. Breaking up monopolies was a priority then, complemented by numerous other initiatives—smarter military procurement, common-carrier requirements, banking regulations, public options—that centered competition as a counterweight to the industrial leviathan.
It’s been a year and a half since Biden signed the executive order; its architect, Tim Wu, has since rotated out of government. Not all of the 72 actions have been completed, though many have. Some were instituted rapidly; others have been agonizing. Some agencies have taken the president’s urging to heart; others haven’t. But the new mindset is apparent.
Seventeen federal agencies are named specifically, tasked with writing rules, tightening guidelines, and ramping up enforcement. I wrote to each agency, asking how they have complied with the order; all of them answered but one (the Federal Deposit Insurance Corporation, whose role is admittedly tangential). Even Cabinet departments that weren’t mentioned wrote in to explain their approach to competition. Clearly, agencies are aware of the emphasis being put on reorienting their mission.
Bringing change to large bureaucracies is often likened to turning around a battleship. One way to get things moving is to have the captain inform every crew member of the intention to turn the battleship around, counseling them to take every action from now on with that battleship-turning goal in mind. The small team that envisioned and executed the competition order put the weight of the presidency behind it, delivering a loud message to return to the fight against concentrations of power. It’s alarming and maybe a little disconcerting that you have to use a high-level form of peer pressure to flip the ship of state. But that battleship is starting to change course.
TIM WU WAS THE FIRST OF THE TRIUMVIRATE of Wu, Khan, and Kanter (a motto emblazoned on mugs by advocates) to actually get appointed in the Biden administration, joining the National Economic Council (NEC) to work on competition policy in early March 2021. Hiring the author of The Curse of Bigness signaled the administration’s strong anti-monopoly thrust. Khan (Lina, chair of the Federal Trade Commission) and Kanter (Jonathan, heading the Justice Department’s Antitrust Division) would arrive later.
The competition order was released four months after Wu’s appointment, but in reality, it was laid out over the previous five years. In that time, a collection of policymakers, journalists, lawyers, politicians, and experts, sometimes known as the New Brandeis movement, warned of the dangers of economic concentration. Wu, Khan, and Kanter were part of this crusade, and prior to the 2020 election, they and others strategized about how to reinvigorate competition policy if Democrats took the presidency.
In this magazine, Sandeep Vaheesan of the Open Markets Institute outlined an anti-monopoly framework for our Day One Agenda series. It included revitalizing rulemaking authority at the FTC, rewriting merger guidelines to reverse laissez-faire bias at the antitrust agencies, restoring consumer rights to repair their own electronic equipment, and completing rules that protect farmers and ranchers from agribusiness exploitation. But even Vaheesan was surprised that the Biden administration embraced all of his recommendations and much more. “I wasn’t really thinking of an executive order when I wrote the piece,” he told me.
Vaheesan mildly questioned the wisdom of including so many action items. “It tries to do everything and maybe ends up doing nothing,” he said. But in its breadth as much as its particulars, the order informed officials across agencies that the White House was supremely attentive on this issue, and would have their backs on the tough decisions. “When we were going around and talking to agency staff, I would say, ‘Why don’t you do this,’” Wu told me. “They’d say, ‘That’s a land mine.’ Our idea was, let’s step on all the land mines at once. We will take your land mines, we will stand on them for you. And if industry complains, we would say, ‘Get in line.’”
When Wu entered the White House, he had a basket of low-hanging fruit, which he supplemented by asking federal agencies what they could do on competition. One constraint was that some of the agencies named in the order are independent commissions outside the Cabinet. So the language had to downshift from ordering agencies to take action to terms like “consider” or “encourage.” Still, the message was clear.
A new White House competition council, led by the NEC, was established to monitor implementation of the 72 actions, as well as legislative and administrative efforts outside the order. There are nine core agencies on the council, each with a senior-level designee on competition policy. The order requires regular council meetings for members and other invited agencies.
That created a kind of show-and-tell dynamic: Agencies needed to display some forward motion on competition at consistent intervals. Wu and his small team—mainly deputy NEC director Bharat Ramamurti, senior policy official Hannah Garden-Monheit (who will take over for Wu as he returns to teaching at Columbia), and a couple of others—created a workshop for designees on how to best work together. There are regular check-ins and happy hours. A “happy news” email group has bred a kind of competition within the competition council, as designees fight to highlight their victories to the White House.
Perhaps most important, Biden has shown up to two of the three council meetings. Nobody wants to come to the chief executive empty-handed. “We wanted the president personally involved,” Wu said. “If you have an agency that feels all alone, their friends become industry. It’s about getting into the heads of agencies and making them feel supported to do things they might not like.”
THE EXECUTIVE ORDER’S PREAMBLE VALIDATES Khan and Kanter’s aggressive perspective on competition policy, hinting at the practices of previous reform eras. For example, antitrust enforcement since the Bork revolution of the 1980s has relied solely on one criterion: Does an anti-competitive action explicitly harm consumer welfare, defined as higher prices. But the preamble to Biden’s order stresses the plight of workers in a concentrated economy, which impedes the ability “to bargain for higher wages and better work conditions.” Though the consequences of too few buyers in an economy (monopsony) had been the subject of numerous studies in recent years, presidential-level discussion of monopsony and monopoly in the same breath was novel.
The Justice Department centered worker harms in its biggest legal victory to date, a successful challenge to the merger between publishers Simon & Schuster and Penguin Random House. The deal would have narrowed major publishers in the U.S. from five to four, and the Antitrust Division argued that authors would suffer from fewer bidders and smaller advances for their work. The judge ruled in DOJ’s favor, saying that the deal would “substantially lessen competition to acquire the publishing rights to anticipated top-selling books.” For a judiciary that has focused primarily on consumers as defined by Bork in antitrust cases, it was a sea change and a model for the future.
DOJ successfully blocked the Penguin Random House/Simon & Schuster merger on the grounds that authors would get smaller advances.
Labor harms were also highlighted in a DOJ Antitrust lawsuit against three poultry processors who colluded to deny workers $84.8 million in wages and benefits. It followed an interagency report on labor market competition, showing that concentration can lower wages by as much as 20 percent. “I do think that the focus on competition is getting people to dig into the topic in a policy-relevant way,” said Joelle Gamble, chief economist at the Department of Labor.
For years, Biden has been emphasizing one vividly abusive aspect of monopsony: noncompete agreements, which prevent workers from switching jobs to competitors in the same industry. At least 1 in 3 businesses require noncompetes, including professions like fast-food preparation, dog grooming, and custodial work. At the executive order signing, Biden spent a long time condemning noncompetes and vowing to end them: “Let workers chose who they want to work for.”
An FTC proposed ban on noncompetes was finally issued in January. Getting the FTC to write rules at all was another priority of the competition order. Under Section 5 of the FTC Act, the agency has broad authority to make rules preventing “unfair methods of competition.” But this authority has languished for decades, and a 2015 policy statement constricted its use further. A new policy statement released in November verified that Section 5 rulemaking is allowable, citing voluminous case law in an attempt to fend off inevitable court challenges.
The order actually called for a number of Section 5 rules, including on unfair competition in prescription drug patents, internet marketplaces, occupational licensing, and real estate listings. But FTC spokesperson Doug Farrar told me there’s nothing imminent in those areas. “If you asked me a year ago, I would have thought FTC would have done more by now,” Vaheesan said. One problem was that, having abandoned rulemaking long ago, the FTC had no staff with expertise. When commissioner Rebecca Kelly Slaughter was acting FTC chair before Khan’s appointment, she set up a rulemaking group in the general counsel’s office. But administrative procedure for new rules takes an eternity, especially if starting from scratch.
One rule the FTC has begun work on concerns personal data collection and surveillance, a sleeper competition issue highlighted in the order’s preamble. The preamble also included discussion of “serial mergers” of “nascent competitors,” which monopolists use to strangle competition before it starts. The FTC followed up on this when it sued Meta (formerly Facebook) for its acquisition of virtual reality startup Within, on the grounds that potential future competition may be harmed. That case went to trial in December, putting a little-used idea from anti-monopoly reformers to a real-world test.
Perhaps the most quietly radical passage of the preamble states that “the United States retains the authority to challenge transactions whose previous consummation was in violation” of the antitrust laws, citing the Standard Oil breakup of 1911 as an example. Retroactive merger review had essentially been abandoned since the Microsoft case in the late 1990s. “We wanted to bring it back to the mainstream of conversation,” Wu said. The FTC’s late-2020 lawsuit against Facebook, specifically over its acquisitions of Instagram and WhatsApp, is a recent example of retroactive review; DOJ Antitrust’s current investigation of the ruinous deal between Live Nation and Ticketmaster shows that breakups are being re-established as a policy tool.
The culmination of these efforts are the new merger guidelines, co-authored by the FTC and DOJ’s Antitrust Division. The guidelines lay out the conditions by which the agencies will intervene to block mergers, and while they place no mandates on how judges follow the law, they do shape legal opinion. “These are layman judges, they can rely on precedent and case law or they can rely on expertise from the agencies,” said Ron Knox of the Institute for Local Self-Reliance. “And if the agencies say these are the kind of mergers that harm competition, judges will take it into account.” Knox added that the guidelines will create deterrents for companies that don’t want to be tied up in years of lawsuits.
The guidelines are expected in the first quarter of this year. In remarks at a Federalist Society event in December, challenging legal conservatives to acknowledge that efficient capitalism depends on genuine competition, Kanter said that “the first principles of antitrust shouldn’t be a book written by a professor, it should be the words of the statute,” which suggests a return to laws that focus on threats to competition over consumer welfare. He added that the entire DOJ Antitrust staff has been consulted on the guidelines, which must incorporate the perspective of the FTC, as well as over 5,000 public comments.
The merger guidelines seek to change the entire focus of competition policy. Despite laying the groundwork for years, that’s ultimately a long-term struggle. “Eighteen months seems like a long time in terms of horse-race politics,” Knox said. “Eighteen months to turn around the philosophy of large federal agencies? That’s not a huge amount of time.”
WHILE THE FTC AND DOJ ANTITRUST are America’s lead competition authorities, numerous other agencies have license to tame monopoly power. The executive order outlines a whole-of-government approach, targeting specific industries—tech, agriculture, prescription drugs, hospitals, telecom, financial services, container shipping. “If you’re worried about the plight of farmers, the Department of Agriculture will have to take the lead,” said Spencer Weber Waller, a professor at Loyola University Chicago who served as a senior adviser to FTC chair Khan for one year. He added that the order “allows agencies to figure out what they’re trying to achieve in the real world and see which superheroes can do it.”
Of the 72 actions, 12 required reports to the competition council, on everything from concentration in retail food markets to procurement agreements on military equipment. Reports are traditionally a pretend accomplishment that get filed away, mostly unread. But the dynamic of reporting to a dedicated White House policy group has spawned a rare Washington sight: post-report action.
FTC proposed a ban on noncompete agreements that prevent worker freedom of movement.
Last February, Lockheed Martin abandoned its proposed merger with Aerojet Rocketdyne, after an FTC lawsuit in consultation with the Pentagon. Strengthened merger oversight came directly out of a recommendation from the Defense Department’s review on competition in the military industrial base. The Treasury Department’s Alcohol and Tobacco Tax and Trade Bureau (TTB) led a report on market access in alcohol markets, showing that, despite the flourishing of small craft producers, consolidation in beer production remained (two brewers control 65 percent of the market by revenue, and own many “craft” beer makers themselves). Concentrated distributors often use market power to lock up independent producers and deny them retail space held for larger brands, a process known as “shelving.” In November, TTB issued an advance notice of proposed rulemaking (ANPR) to address this exclusionary conduct.
Other actions wouldn’t have to be articulated if government functioned properly. In 2017, bipartisan legislation from Sens. Elizabeth Warren (D-MA) and Chuck Grassley (R-IA) allowed patients to buy certified hearing aids without a prescription. That requirement created barriers for new market entrants, and allowed a small cartel to artificially raise prices so much ($4,700 in 2013) that only one-fifth of Americans with hearing loss managed to purchase auditory devices.
But despite a statutory mandate to complete rules for the new market by 2020, Donald Trump’s Food and Drug Administration (FDA) simply didn’t follow through, amid cartel lobbying and an inattention to competition issues. Biden’s executive order set a 120-day deadline for establishing the market, spurring the FDA to propose new rules before the deadline. The final rule was issued in August; millions of hearing-impaired Americans now have access to affordable assistance. “If you talk about revitalizing antitrust enforcement, that won’t get people’s attention,” said Waller. “If you can say, ‘I just saved $3,000 on hearing aids,’ that gets people’s attention.”
One problem in the hearing aid market is so-called “patent pooling,” where oligopolistic firms share essential patents and exclude rivals. There’s been a long-standing fight between patent holders and manufacturers over the key components they need to make products, which Wu described to me as “impossible to talk about without people shouting at each other.” The Trump administration had taken the side of patent holders in an interagency letter, effectively saying that violating commitments to license patents under fair, reasonable, and nondiscriminatory (F/RAND) commitments would never be an antitrust violation. Per the competition order’s urging, that letter was withdrawn in June, but the agencies replaced it with nothing, trashing a draft policy statement that was more neutral. “It ended in a tie,” Wu said.
The F/RAND battle reveals the occasional difficulties of reconciling administrative intentions with agency drift. The order urged cross-agency partnerships with the FTC and DOJ Antitrust on merger oversight, investigations, and remedies, and Khan and Kanter clearly wish to restore anti-monopoly traditions. But not every agency agrees. On the F/RAND issue, the Commerce Department subagencies that regulate in this area have traditionally given more leeway to patent holders.
Another example is bank mergers. The Federal Reserve approved over 3,500 bank mergers from 2006 to 2021, with zero denials; the day of the executive order, the Fed approved another one. The controlling statute, the Bank Merger Act of 1960, actually created a higher merger standard than other industries, and DOJ Antitrust has been leading a review. But it must be coordinated with financial regulators. While Fed vice chair for financial supervision Michael Barr and FDIC chair Martin Gruenberg have called merger policy a priority, and the Office of the Comptroller of the Currency has planned a symposium for February, no changes have been announced, to the chagrin of advocates. (The Fed did finally deny one merger in 2022.)
DOJ Antitrust has signed memorandums of understanding (MOUs) with multiple agencies, lending investigators and legal analysis. But this doesn’t automatically confer a good working relationship. Take for example the MOU with the Federal Maritime Commission (FMC). In 2017, DOJ investigators raided a meeting of the largest ocean carriers, issuing subpoenas over alleged price-fixing involving shipping “alliances” that the FMC had previously approved. This generated lingering hostility, and while the FMC, alarmed by skyrocketing shipping rates after the pandemic, has diligently addressed high fees and implemented a new shipping reform law, nothing has emerged yet from the MOU. The FMC said that ongoing investigations “cannot be discussed publicly.”
PERHAPS THE MOST SCHIZOPHRENIC INTERAGENCY relationship has been between DOJ Antitrust and the U.S. Department of Agriculture (USDA). On the positive side, the agencies created a joint portal to solve a simple problem: When farmers and ranchers faced unfair practices from agribusiness, they didn’t know where to file a complaint. FarmerFairness.gov became a one-stop shop, with over 80 submissions according to a USDA official. DOJ’s lawsuit on poultry processor collusion came out of this process.
Tom Vilsack, who ran USDA under Barack Obama, returned as secretary of agriculture. The Obama administration promised action to protect small farmers from Big Ag and failed to deliver. This time, Vilsack hired Andy Green, who is respected in anti-monopoly circles, to handle competition policy. USDA has made concerted efforts to fund new competitors, making $1 billion in grants to small meatpackers and putting $500 million into fertilizer capacity, along with supporting state and local government procurement of homegrown food. USDA is also enhancing greater transparency in cattle markets, where nearly all sales are spot sales, making it hard for ranchers to know the going rate.
USDA proposed rules on chicken farmer exploitation that only address transparency, while DOJ banned deceptive practices by one company.
But when DOJ Antitrust sued to block the merger of sugar giants U.S. Sugar and Imperial, USDA chief economist Barbara Fesco testified for the sugar industry in the case, stating that the merger would benefit consumers despite admitting to having no data confirming that. “Knowing these people as long as I have, ‘I had high faith that [the deal] was good,’” Fesco said at the trial. The judge ruled against DOJ last September, explicitly stating that Fesco was a credible witness.
The testimony seemed to violate USDA and DOJ’s shared commitment to promoting competition, even though Fesco stated that she was operating in her “personal capacity.” USDA took no official position on the merger, and in a statement, a spokesperson said, “USDA remains committed to the vigorous application of the antitrust laws in every sector of agriculture, including sugar.” The agency also noted that Fesco was compelled to testify by a subpoena. Still, Fesco’s appearance angered lawmakers who saw an administration at odds with itself, and an agency bureaucratic structure still in thrall to big business.
Frustration has also arisen in USDA’s hesitations on rulemaking. One of Lina Khan’s first votes as FTC chair finalized a rule targeting imitation “Made in the USA” labeling on products made outside the country. But though the competition order called for a companion rule on food items with “Product of USA” labeling, a USDA official would only say it was engaged in a “comprehensive review,” seeking information on whether consumers are confused. Joe Maxwell of Family Farm Action, an anti-monopoly organization, said that officials have told him something I heard too, that USDA wants to tread carefully and make “legally durable” rules. “But FTC just did it,” Maxwell said. “We feel it’s delay, delay, delay.”
Delays have similarly plagued a desperately needed rewrite of Packers and Stockyards Act regulations, which outline anti-competitive violations. Under Obama, Vilsack failed to get the rules finalized after eight years; Trump’s USDA then threw them out. But instead of just picking up what was already written, Biden’s USDA is moving deliberately. Two rules have been proposed, one on discrimination, deception, and retaliation, and another to increase transparency in poultry contracting. The key rule would clarify that USDA doesn’t need to demonstrate harm to the entire industry to establish a violation, a hurdle for many Packers and Stockyards cases. That rule, though asked for in the executive order, has yet to be released.
The rule on poultry contracting is instructive. The notorious tournament system pits chicken farmers against one another, forcing them to work exclusively for and abide by the precise instructions of large processors. Farmers who grow the biggest chickens win, but their bonuses come out of the pay of their neighbors. The USDA rule only affords transparency to poultry farmers who already know they’re getting screwed. By contrast, the Justice Department paired approval of a merger between chicken processor Cargill and Sanderson Farms with a consent decree that essentially banned the tournament system, by calling it a deceptive practice under the Packers and Stockyards Act.
The Cargill ban covers 15 percent of the poultry market, but USDA could apply similar treatment elsewhere. USDA issued a notice on fairness issues in poultry, which is under review. But Maxwell, whose organization has asked USDA to follow DOJ, believes the sense of urgency is not there. “As we say on the farm,” Maxwell said, “I’m not sure about their want-to.”
WHEN PARTNERSHIPS AMONG DIFFERENT AGENCIES are successful, they can be powerful. The Surface Transportation Board (STB) is the chief regulator for freight rail, an industry that has narrowed from 40 Class I competitors to seven, which split up the country and don’t compete much. (A proposed merger would cut this to six.) “There certainly is a concentration problem,” STB chair Martin Oberman told the Prospect. “As bad as services get or as bad as prices may rise, customers do not have an option.”
Despite being an independent agency, STB was asked to take several steps in the competition order, all of which are in some state of progress. This includes a “reciprocal switching” rule that has been pending for six years, which would allow a shipper served by only one railroad to get their freight carried to a nearby rail line, generating a legitimate choice. STB held hearings on reciprocal switching last spring, and a recent report projected further action in February.
FDA finalized rules that allow hearing aids to be sold without a prescription, breaking up a cartel that artificially raised prices.
STB also finalized rules on rate reasonableness in December, and formed a new office to enforce freight lines that hinder Amtrak’s on-time performance; Amtrak filed its first complaint against Union Pacific for a “pattern and practice” of not allowing its passenger service on freight routes, as required by law. Railway Age called Oberman and his colleagues “the most active and intense crop of rail regulators” in U.S. history.
“Marty is the poster child for what we’re trying to inspire,” Wu said, noting that small agencies typically get overrun by industry. “He’s the best version of government working the way it should.”
Another surprisingly strong partner has been the Federal Communications Commission (FCC), despite not having a Democratic majority throughout Biden’s presidency. Industry lobbying has prevented the seating of Gigi Sohn as the fifth commissioner, creating a 2-2 partisan deadlock. This has made it impossible to restore controversial “net neutrality” rules for open access to the internet, one of Wu’s biggest priorities, or to fine telecom companies for violating privacy laws.
However, the FCC’s recent wireless spectrum auction mostly favored rural communities and small business, a shift away from Big Telecom. The agency has taken the lead on next-generation 5G Wi-Fi protocols. Broadband companies must now display simple consumer labels with charges, fees, and connection speeds, allowing for comparison shopping. Providers must also submit annual data to the FCC on price and subscription rates. And the agency adopted rules to prevent landlords from getting kickbacks to narrow tenant choices on cable and internet. That’s nearly everything else on the competition order’s list.
Consumer Financial Protection Bureau (CFPB) director Rohit Chopra, a former FTC commissioner, has placed competition atop his priority list. CFPB plans to issue a rule this year on financial data portability to make it easier to move bank accounts, which could diminish lock-in effects. It has punished companies for using captive markets (like prison financial services) to gouge consumers. And Chopra serves on the FDIC board, and has been active in pushing for bank merger reform.
CFPB has also led a government-wide initiative on so-called “junk fees”—unexplained and deceptive charges from hotels, cable companies, ticket brokers, banks, and more. At last October’s competition council meeting, President Biden called on all agencies to target junk fees, which is starting to happen. CFPB effectively banned some bank-related junk fees; FTC proposed rules to restrict add-on fees from auto dealers and launched a process to crack down on more; the Federal Maritime Commission is working on a rule to clarify practices for junk cargo fees.
More interestingly, the attack on junk fees is changing the market. Fifteen of the top 20 banks have stopped imposing non-sufficient funds fees on customers who overdraw accounts, and Citi and Capitol One eliminated overdraft protection charges. A similar dynamic led credit reporting bureaus to remove medical debt from consumer credit reports, after Chopra vowed to hold them accountable for numerous errors with that type of debt.
Apple and Microsoft also changed their policies on allowing consumers to repair their own electronic equipment, after the FTC voted to bolster enforcement. This shows how a strong stance against market power can prompt change all by itself.
LARGE AND UNWIELDY AGENCIES HAVE BEEN slower to accept a broad competition mandate, like the Department of Health and Human Services (HHS). In some areas, like finishing the hearing aid rules and requiring insurers to offer standardized plans on Obamacare exchanges, HHS has gotten the message. But progress has been much more scattered with the sprawling, government-granted monopolies of the prescription drug industry.
Some inaction can be chalked up to the fact that Congress was legislating on the same subject for the past two years. Democratic congressional leadership asked for a freeze on executive action on drug prices, to avoid upsetting Joe Manchin and toppling the delicate coalition needed to pass a bill. But the drug price reforms passed in the Inflation Reduction Act (IRA) in August, and despite a second executive order since then asking for additional steps, little has been achieved.
Treasury proposed rules to address exclusionary conduct among beer distributors.
HHS released what it called a “comprehensive plan” last September on excessive drug prices, which was generally seen as unambitious. An HHS spokesperson, when asked what has been done since the report, primarily highlighted the IRA, and said the agency was working to implement it. The spokesperson added that HHS was writing a report for the second executive order, which would enable the Center for Medicare and Medicaid Innovation to test models to reduce drug spending. While the FDA and the U.S. Patent and Trademark Office have discussed preventing drugmakers from gaming the patent system and extending monopoly time frames, the clearest example of a competition harm, the HHS spokesperson didn’t elaborate on specifics, outside of educational guidelines for generic producers.
Like at other agencies, there’s a deep aversion at HHS to being sued, or attacked by Congress. As a result, while the agency has made some progress on the executive order, its proposals are exceedingly mild, offering ideas that save millions on spending in the billions.
Two areas stand out. The executive order asked the FDA to work with states and tribes that apply to build drug importation programs from Canada. Since 2020, New Hampshire, Maine, New Mexico, and Colorado have applied. Outside of a couple of meetings and a PowerPoint, nothing has been done. Granted, there are clear challenges to raiding the drug supply of a small country to assist patients in a very large one.
A less understandable situation involves march-in rights. Since the Bayh-Dole Act of 1980, HHS has had the authority to seize patents on drugs developed with government funds, if they are not delivered to patients on “reasonable terms.” For decades, march-in supporters have said that high prices are unreasonable, but the National Institutes of Health, which funds a lot of drug development and whose senior officials often enjoy royalties from them, has never accepted this rationale.
Advocates have found a perfect example: a prostate cancer drug called Xtandi, invented with grants from the U.S. Army and NIH, that sells in the U.S. for three to five times higher than in other industrialized nations. There are two FDA-approved generic versions ready to go if the patent was seized. The maker of Xtandi, a Japanese company named Astellas, has already earned more than $20 billion in revenue from the drug. Marching in would not prevent Astellas from making its profits.
The competition order paved the way for action. The National Institute of Standards and Technology (NIST), a division of the pro-industry Commerce Department, was preparing a rulemaking that would have essentially blocked the use of march-in over high prices. The order asked NIST to reconsider that rule, and the agency complied.
In response to a petition from patients, NIH and HHS said last January that they would complete an initial review within a month. After hearing no follow-up, the patients sent another letter in November; Tara Schwetz of NIH responded that “we are currently coordinating with HHS to review and assess the information submitted in the 2021 petition.” HHS told me that the matter “is still under internal deliberation.” The one-month review is now going on a year.
“We’re not asking [HHS] to resolve every issue about drug pricing in this case,” said Jamie Love of Knowledge Ecology International, an advocacy group. “This is an important case, and if you can’t do this it doesn’t bode well.”
There are rumors that NIST may return to finalize the rule that the executive order asked them to scrap. It’s a confounding and frankly anti-democratic situation. The administration has laid out clear priorities, and bureaucrats are either simply disinterested in them or sometimes willfully undermine them.
A MELTDOWN OF SOUTHWEST AIRLINES’ scheduling system over the Christmas holiday led to tens of thousands of canceled flights, and renewed attention on its chief regulator, the Department of Transportation, which has been criticized for failing to protect travelers. Most of the competition order related to DOT had to do with airlines, a concentrated industry with four carriers controlling 80 percent of all domestic routes.
The order encouraged DOT to address the failure of airlines to provide refunds for canceled flights; develop rules on fee disclosure, deceptive marketing, and refunds for baggage fees when items are lost or delayed; coordinate with DOJ on competition issues in transportation; and support the opening up of gate slots at large airports. At a surface level, the agency can definitively say they’ve achieved all of it. “DOT is taking action like never before,” a spokesperson said, “helping hundreds of thousands of travelers get more than a billion dollars of refunds back, issuing the highest amount in fines for consumer protection violations in the Department’s history, and enhancing consumer protections with proposed rulemakings.”
DOT fined six airlines for failing to refund passengers for canceled flights, but only one of the six was a U.S. carrier.
But William McGee, a longtime consumer advocate and airline expert now with the American Economic Liberties Project, calls it all window dressing. “It’s as if you wouldn’t even know that Biden announced the competition order,” he told me. In comments to DOT, McGee’s organization has noted that Americans faced the worst summer for customer service in history in 2022, with over 121,000 flights canceled in the first six months of the year. A lack of competition exacerbates cancellations and gives passengers no recourse but to fly the same inept airlines, and only the industry’s chief regulator can take action. “The agency’s lax regulatory approach has allowed and encouraged airlines to continue destabilizing the air travel industry,” the letter concludes.
Take DOT’s enforcement order against six airlines for failing to deliver timely refunds for canceled flights, as required by law. Frontier, a low-cost carrier with 3.2 percent of the market, was the only U.S. airline fined; the other five were foreign. United, the airline with more than twice as many refund complaints as any other airline in 2020, was not fined, nor were the other major U.S. carriers. “We were told the window has closed on that,” McGee said. A DOT spokesperson said that was inaccurate and that additional orders against carriers would be issued soon; three domestic airlines, the spokesperson added, were being investigated for “unrealistic scheduling.”
In August, DOT issued a draft rule on refunds, even though the agency’s existing interpretation regards failing to refund canceled flights as an unfair practice. Rulemaking could keep airlines safe from more fines for up to two years before it’s finalized. DOT already has a rule on unfair and deceptive practices; accepting money for a flight without the staff to handle it, and later canceling it, fits the definition, and could be used today.
DOT did issue 16 peak slots at Newark Airport to low-cost carrier Spirit, adding routes to the airport. But that was after an appeals court required that the slots be given out in May 2021. No other action has been taken on slots, which large carriers often sit on to avoid having to compete.
Other actions have been similarly soft-touch. Instead of a rule requiring airlines to seat children with their parents without an additional fee, DOT issued a notice encouraging them to do so. In October, DOT proposed a rule on fee transparency, so passengers would know how much a flight costs before making the sale. At an informal meeting with DOT officials last October, McGee asked why the department wasn’t looking to ban so-called junk fees, in line with the CFPB-led approach. McGee told me the response was “I am not aware of that and it would be a big departure for the department.”
The DOT spokesperson said this was false, though only could point to the transparency rule. The spokesperson added that the Airline Deregulation Act of 1978 restricts the ability to ban certain airline fees unilaterally. But advocates say that DOT has historically been hesitant to use its authority, regardless of party.
That could change quickly. Jen Howard, the former chief of staff to Lina Khan at the FTC, has moved to DOT to head up competition policy, with a particular focus on airlines. Perhaps a more aggressive impulse will spread across the government.
DESPITE DISAPPOINTMENTS WITH DOT, the agency is responsible for the action that gives White House officials the most hope for a new dawn on competition policy, one that wasn’t even in the executive order.
The bipartisan infrastructure law spends $7.5 billion on a nationwide electric-vehicle charging network. But current EV companies haven’t settled on a standard charging plug. Tesla’s fast Level 3 chargers had not been interoperable with other vehicles, and required specific software to use. A division of DOT proposed interoperability standards for all EV chargers that wanted to access federal funds. Tesla agreed to change their network and abide by the new rules. The carrot of federal money helped to prevent walled gardens in the EV industry. “My motto is, net neutrality for EV chargers,” Wu said. “I book that as a solid win.”
An even more outside-the-box action came in the obscure industry of fire retardants. Perimeter Solutions is a monopoly provider of retardant, the red gooey material dropped out of planes to combat big wildfires. Sometimes the word “monopoly” is thrown around cavalierly, but here it was literally true: For two decades, Perimeter made the only retardant on the U.S. Forest Service’s “Qualified Product List” (QPL), which guides what federal, state, and local government agencies, the primary users of retardant, can purchase. Other countries use the QPL as well. That means Perimeter has absolute dominance of a growing industry amid more dangerous and frequent fire seasons.
But in December, Fortress, a startup firm, became the first new entry on the QPL in 22 years. This “brings sorely needed competition back to the market and marks the beginning of a new era of innovation,” Fortress CEO Robert Burnham said in a statement. In a response to the Prospect, the Department of Agriculture called the change “a hard-fought victory.”
Just about everything on competition has been hard-fought. But there’s plenty of evidence of real movement. Agencies like the Department of the Interior, Department of Education, and the Small Business Administration, none of which are mentioned in the order, told the Prospect about their efforts to maximize competition in procurement and support small business. The lead agencies have gone beyond the order, reinvigorating dormant anti-monopoly laws like the Robinson-Patman Act (which prevents chain retail stores from gaining unfair advantage) or Section 8 of the Clayton Act (which bars directors and officers from sitting on the corporate boards of multiple competitors). Congress chipped in with the first new antitrust law in nearly a half-century, which gives state attorneys general a better chance to win antitrust cases.
Mergers and acquisitions slowed sharply in the second half of 2022, and while a lack of cheap money from the Federal Reserve is partially responsible, so is an enforcement team that is more undaunted than it’s been in decades. And aggressive antitrust agencies translate across government. For example, the FTC’s definition of unfair or deceptive acts and practices is used by other agencies; when the FTC tightens its guidelines, other agencies follow.
Corporate power won’t concede without a fight. And there are more hearts and minds to win inside the government. But once a course has been corrected, it’s hard to switch back. The engineers of this shift in competition policy have done more than change a policy; they’re changing the country’s direction.
