Federal Trade Commission and Justice Department Move to Strengthen Ties

Agencies Launch Joint Public Inquiry Aimed at Modernizing Merger Guidelines to Better Detect and Prevent Anticompetitive Deals at the Cost of Privacy – January 2022

WASHINGTON – The Federal Trade Commission (FTC) and the Justice Department’s Antitrust Division launched a joint public inquiry aimed at strengthening enforcement against illegal mergers.

According to the FTC, recent evidence indicates that many industries across the economy are becoming more concentrated and less competitive – imperiling choice and economic gains for consumers, workers, entrepreneurs, and small businesses. The agencies claim that these problems are likely to persist or worsen due to an ongoing merger surge that has more than doubled merger filings from 2020 to 2021. To address mounting concerns, the agencies are soliciting public input on ways to modernize federal merger guidelines to better detect and prevent illegal, anticompetitive deals in today’s modern markets.

“Illegal mergers can inflict a host of harms, from higher prices and lower wages to diminished opportunity, reduced innovation, and less resiliency,” said FTC Chair Lina M. Khan. “This inquiry launched by the FTC and DOJ is designed to ensure that our merger guidelines accurately reflect modern market realities and equip us to forcefully enforce the law against unlawful deals. Hearing from a broad set of market participants, especially those who have experienced first-hand the effects of mergers and acquisitions, will be critical to our efforts.”

“Our country depends on competition to drive progress, innovation, and prosperity,” said Assistant Attorney General Jonathan Kanter of the Justice Department’s Antitrust Division. “We need to understand why so many industries have too few competitors, and to think carefully about how to ensure our merger enforcement tools are fit for purpose in the modern economy.”    

Competition is critical to the success of the economy. It ensures that Americans have the freedom to choose among different suppliers and different employers. When businesses face competition, it spurs them to improve their products, develop new ones, and lower prices. Mergers can reduce choices for consumers, workers, and other businesses, leaving them increasingly dependent on larger and more powerful firms that have purchased greater power to dictate the terms of their deals. To protect competition and prevent increased consolidation, Congress passed a series of antitrust laws and authorized the FTC and the Justice Department to enforce them.

The antitrust laws charge the FTC and the Justice Department with preventing mergers that may substantially lessen competition or tend to create a monopoly. Merger guidelines are frameworks for the analysis of mergers under the antitrust laws. The Justice Department first published merger guidelines in 1968, with the goal of providing transparency into the standards it applied in reviewing mergers. Since then, the agencies have published a number of updates, generally specified by whether the transaction is considered horizontal (within the same market) or vertical (within the same supply chain). Although the guidelines identify some of the competitive harms mergers present, markets may fall outside the frameworks under the current approach.

The public inquiry launched today seeks comments on developments in the modern economy and new evidence of mergers’ effects on competition to inform potential revisions to the guidelines. The agencies encourage the public, including market participants, government entities, economists, attorneys, academics, unions, employees, farmers, workers, businesses, franchisees, and consumers, to share feedback, evidence, and ideas that may inform revisions to the guidelines. Some of the specific areas of inquiry on which the agencies are seeking public input and information include:

  • Purpose and scope of merger review: The agencies seek information on whether the guidelines explain and implement the statutory ban on transactions that “may” substantially lessen competition or tend to create a monopoly, and what harms are contemplated by those standards. The agencies further seek input on whether distinctions between horizontal and vertical transactions reflected in the guidelines should be revisited in light of trends in the modern economy.
  • Presumptions that certain transactions are anticompetitive: The guidelines identify certain market circumstances that justify a presumption of competitive harm based on market concentration. The agencies seek information on whether concentration thresholds should be adjusted to improve the efficiency and effectiveness of enforcement, whether alternative metrics or qualitative factors should also trigger presumptions of competitive harm, and evidence regarding the accuracy of such presumptions.
  • Use of market definition in analyzing competitive effects: The agencies seek input on potential updates to the guidelines’ market definition analysis to better account for non-price competition. They also seek to input on when direct evidence of a transaction’s likely competitive effects, such as evidence of head-to-head competition, may eliminate the need for a separate market definition exercise.
  • Threats to potential and nascent competition: The agencies seek input on potential updates to the guidelines’ discussion of potential and nascent competitors, which may be key sources of innovation and competition.
  • Impact of monopsony power, including in labor markets: The agencies seek input on how to address the issue of buyer power in more detail in the guidelines. Labor markets are a key example of buyer power, and the agencies seek information regarding how the guidelines should analyze labor market effects of mergers.
  • Unique characteristics of digital markets: The agencies seek information on how to account for key areas of the modern economy like digital markets in the guidelines, which often have characteristics like zero-price products, multi-sided markets, and data aggregation that the current guidelines do not address in detail.

The Request for Information is available at: https://www.regulations.gov/docket/FTC-2022-0003/document.

The comment period is open for 60 days. Comments can be submitted to regulations.gov and must be received no later than Monday, March 21, 2022. The information will be used by the agencies to consider updates and revisions to the guidelines. If such revisions are contemplated in light of the evidence received and the agencies’ independent research, the agencies will publish proposed guidelines for public comment.

In a press event, Chair Lina M. Khan gave remarks as did Assistant Attorney General Jonathan Kanter. Commissioners Noah Joshua Phillips and Christine S. Wilson issued a statement.

Editorial Note: The Sentinel is deeply concerned about the possibility of any increased governmental “cooperation” when it represents a high likelihood of individual rights being compromised, especially on such a significant scale, and encourages the Reader to examine the intended operational changes and, if you are concerned as well, visit the Public Comment site at: https://www.ftc.gov/policy/public-comments.

Original source material from this post can be found here.

Trump Considers Tying Criminal Justice Reforms to Border Wall Funding

The FIRST STEP Act might get shoved into an end-of-year spending bill.

There appears to be enough bipartisan backing to pass some modest reforms to federal prison conditions and mandatory minimums. Even the Fox Broadcasting Company has put out a statement of support for the FIRST STEP Act. Yet the bill is still stuck in the Senate, and the future of federal criminal justice reform legislation remains unsettlingly cloudy.

President Donald Trump formally announced his support for the law in November, and it has already passed the House. But Sen. Majority Leader Mitch McConnell (R–Ky.) says it might not get a floor vote until January. McConnell is being pressured by fellow conservatives who back the bill and say they know they have the votes to pass it, but a group of Republicans is apparently trying to remove some “safety valve” provisions that permit judges to deviate from mandatory minimum sentence guidelines in some cases. That safety valve has the potential to reduce the sentences of more than 2,000 defendants a year.

Trump reportedly has a plan to get the law passed. According to Sen. Lindsey Graham (R–S.C.), the president wants to shove the FIRST STEP Act into a year-end must-pass spending bill. Lawmakers just passed a stop-gap bill to continue funding the federal government for a couple more weeks. But that runs out right before Christmas.

Senator Graham tweets:

In other words, Trump is trying to tie the FIRST STEP Act to funding for his border wall. He wants $5 billion to start the wall. Senate Democrats have said that they’re willing to fund $1.6 billion for more border security but that they’re not going to give Trump all the money he wants. And obviously, once the Democrats take over the House they’re not going to give him the funds.

Republican Senators have introduced legislation to give Trump $25 billion for the wall, but that bill has no chance of going anywhere at all.

Trump’s tactic here is not terribly unusual. Year-end “must pass” omnibus spending bills have become a depository for unrelated legislation when congressional leaders are struggling to pull together votes. Some of these bills wouldn’t survive public scrutiny. Back in 2016, Reason.com explored several of the unrelated pieces of legislation that got dropped into a $1.1 trillion spending bill passed before the end of 2015.

So the big question here is whether the two demands can be separated. Could the FIRST STEP Act get tossed in the spending bill even if Democrats refuse any consideration of more border wall spending? And will Trump still support it in that case? If he’s stubborn, could that actually cause politically ambitious Democratic senators like Kamala Harris of California and Elizabeth Warren of Massachusetts to turn against the FIRST STEP Act so they can use it as a bludgeon against Trump?

UPDATE: Sen. Ted Cruz (R-Texas) who had been opposing the FIRST STEP Act (after previously supporting it) says he’s back on board after an amendment was added to “exclude violent offenders from being released early.”

Radio Search for Artificial Emissions from ‘Oumuamua

It’s the first time a visitor from another star system has been seen nearby. But what is it? An asteroid, a comet … or an alien artifact?

Scientists at the SETI Institute have attempted to address this question by using the Allen Telescope Array (ATA) to observe ‘Oumuamua when it was about 170 million miles away, or slightly less than the diameter of Earth’s orbit.

The intention was to measure artificial radio transmissions which, if found, would be strong evidence that this object is not simply a rock tossed into space by a random gravitational slingshot interaction that occurred in its home star system.

“We were looking for a signal that would prove that this object incorporates some technology – that it was of artificial origin,” says Gerry Harp, lead author of a paper to be published in the February 2019 issue of Acta Astronautica.

“We didn’t find any such emissions, despite a quite sensitive search. While our observations don’t conclusively rule out a non-natural origin for ‘Oumuamua, they constitute important data in accessing its likely makeup.”

Following its discovery in October 2017, ‘Oumuamua was the subject of popular speculation about a possible non-natural origin largely because it brought to mind the interstellar spaceship in Arthur C. Clarke’s novel Rendezvous with Rama. Its highly elongated shape and the fact that no coma was observed strengthened this hypothesis for some, as these are uncharacteristic of asteroids and comets.

A recent paper published in Astrophysical Journal Letters by researchers at Harvard has also suggested the possibility that ‘Oumuamua is a deliberate construction. The Harvard researchers argue that the slight, unexpected acceleration observed for this object could be caused by pressure from sunlight as ‘Oumuamua swung around the Sun.

Their hypothesis is that the object might be a light sail, either deliberately or accidentally sent our way. A deliberate origin is considered somewhat more likely because our solar system is a very small target for any object that is not being aimed.

Such arguments strengthen the importance of observations such as those conducted on the ATA that can constrain the true nature of ‘Oumuamua.

Observations were made between November 23 and December 5, 2017, using the wide-band correlator of the ATA at frequencies between 1 and 10 GHz and with a frequency resolution of 100 kHz. No signals were found at a level that would be produced by an omnidirectional transmitter on-board the object of power 30 to 300 milliwatts.

In portions of the radio spectrum that are routinely cluttered by artificial satellite telemetry, the threshold for detection was as high as 10 watts. In all cases, these limits to the powers that could be detected are quite modest – comparable to that of cell phones or citizen band radios.

While no signals were found coming from ‘Oumuamua, the types of observations reported by SETI Institute scientists may have utility in constraining the nature of any interstellar objects detected in the future, or even the small, well-known objects in our own solar system.

It has been long-hypothesized that some of the latter could be interstellar probes, and radio observations offer a way to address this imaginative, but by no means impossible, idea.

Electronic Skin Bridges The Gap Between You and Iron Man

Human skin contains sensitive nerve cells that detect pressure, temperature and other sensations that allow tactile interactions with the environment. To help robots and prosthetic devices attain these abilities, scientists are trying to develop electronic skins.

Now researchers report a new method in ACS Applied Materials and Interfaces that creates an ultrathin, stretchable electronic skin, which could be used for a variety of human-machine interactions. See a video of the e-skin here.

Electronic skin could be used for many applications, including prosthetic devices, wearable health monitors, robotics and virtual reality. A major challenge is transferring ultrathin electrical circuits onto complex 3D surfaces and then having the electronics be bendable and stretchable enough to allow movement.

Some scientists have developed flexible “electronic tattoos” for this purpose, but their production is typically slow, expensive and requires clean-room fabrication methods such as photolithography. Mahmoud Tavakoli, Carmel Majidi and colleagues wanted to develop a fast, simple and inexpensive method for producing thin-film circuits with integrated microelectronics.

In the new approach, the researchers patterned a circuit template onto a sheet of transfer tattoo paper with an ordinary desktop laser printer. They then coated the template with silver paste, which adhered only to the printed toner ink. On top of the silver paste, the team deposited a gallium-indium liquid metal alloy

Pelosi Rides Rough Road To Speaker As More Democrats Threaten To Withhold Support

More Democrats threaten to withhold support for Pelosi’s House Speaker role

WASHINGTON – A group of nine Democrats threatened Friday to withhold support for Nancy Pelosi’s House Speaker bid, creating a potential roadblock for the California Democrat who has been lobbying for weeks to get her old role back.

Pelosi was already fighting for support from a group of 16 Democrats who penned a letter, declaring they wouldn’t support the minority speaker and instead called for new leadership.

The new group of nine Democrats from the Problem Solvers Caucus threatened to withhold support for Pelosi until she agrees to a list of demands that includes House rule changes that could potentially allow for more bipartisan legislation to pass.

The group, in a statement, said it would “only vote for a Speaker candidate who supports ‘Break the Gridlock’ rules changes.”

The group met with Pelosi last week after sending her a letter about calls to change House rules that would allow all members to push bills in the House, which currently is only done by the leadership, according to CNN.

“While we appreciate Leader Pelosi’s broad commitment to our effort, we have yet to receive specific commitments to our proposed rules changes that would help ‘Break the Gridlock’ and allow for true bipartisan governing in this new era of divided government,” a statement from the group reads. “Without specific changes, we will face more of the same — small pockets of extreme ideologues will continue to block the will of the commonsense majority.”

While Pelosi is widely expected to win the House Speaker nomination next week in her caucus, she faces a tougher battle when the full House votes on her nomination in January. She will need a majority, 218 votes, to win the position.

The caucus’ threat to withhold nine votes along with the 16 members who signed a letter last week could be a potential roadblock for Pelosi. Democrats will hold at least 234 seats in the House when new members are sworn in, meaning she can only afford to lose 16 votes.

Pelosi still has weeks to lobby those on the fence before the final January vote.

Already some of those who voiced opposition have caved and now are supporting Pelosi for the role. Rep. Brian Higgins, D-N.Y., who was one of 16 to sign the opposition letter last week, reversed his position after Pelosi said she was open to Medicare for people over 50 and an infrastructure bill, something many Democrats have said would likely receive bipartisan support.

The Problem Solvers Caucus has pushed for ‘Break the Gridlock’ rule changes, which Politico notes include proposals that would allow individual House members to propose bipartisan bills, which over the years have been overlooked.

The caucus said in its statement that this month’s midterms showed that “the American people have had enough of obstructionism and pure partisanship” and instead want Congress to govern and pass meaningful legislation.

“Although we are at a stalemate in our discussions, and therefore cannot support Leader Pelosi for Speaker at this time, we will keep working with the Leader and others in hope of reaching consensus on specific rules changes for more bipartisan, common sense governing,” the group said.