,,ii #aagth ,,congress #ast ,session ,s4 #cbfg ,,in ,,the ,,senate ,,of ,,the ,,united ,,states ,november #ah1 #bjba ,ms4 ,klobuchar 7for herself1 ,mr4 ,blumenthal1 ,ms4 ,hirono1 and ,mr4 ,booker7 introduced the following bill2 which was read twice and referred to the ,committee on the ,judiciary ,a ,,bill ,to reform the antitrust laws to better protect competition in the ,american economy1 to amend the ,clayton ,act to modify the standard for an unlawful acquisition4 #a4 ,short title ,this ,act may be cited as the ,consolidation ,prevention and ,competition ,promotion ,act of #bjba4 #b4 ,findings and purposes 7a7 ,findings ,congress finds that-- 7#a7 competitive markets1 in which multiple firms compete to buy and sell products and services1 are critical to ensuring economic opportunity for all people in the ,united ,states and providing resilience to the economy during unpredictable times2 7#b7 when companies compete1 businesses offer the highest quality and choice of goods and services for the lowest possible prices to consumers and other businesses2 7#c7 competition fosters small business growth1 reduces economic inequality1 and spurs innovation and job creation2 7#d7 in the ,united ,states economy today1 the presence and exercise of market power is substantial and growing2 7#e7 the presence and exercise of market power makes it more difficult for people in the ,united ,states to start their own businesses1 depresses wages1 and increases economic inequality1 with particularly damaging effects on historically disadvantaged communities2 7#f7 market power and undue market concentration contribute to the consolidation of political power1 undermining the health of democracy in the ,united ,states2 7#g7 the anticompetitive effects of monopoly power or buyer market power include higher prices1 lower quality1 lessened choice1 reduced innovation1 foreclosure of competitors1 and increased entry barriers2 7#h7 monopsony power or seller market power allows a firm to force suppliers of goods or services to accept below market prices or to force workers to accept below market wages1 resulting in lower quality products and services1 reduced opportunities for suppliers and workers1 reduced availability of products and services for consumers1 reduced innovation1 foreclosure of competitors1 and increased entry barriers2 7#i7 horizontal consolidation1 vertical consolidation1 and conglomerate mergers all have potential to increase market power and cause anticompetitive harm2 7#aj7 extensive consolidation is reducing competition and threatens to place the ,american dream further out of reach for many consumers in the ,united ,states2 7#aa7 since #bjjh1 firms in the ,united ,states have engaged in over #aj1jjj1jjj1jjj1jjj in mergers and acquisitions2 7#ab7 the acquisition of nascent or potential rivals by dominant firms can present significant long-term threats to competition and innovation2 7#ac7 the acquisition1 by one of its competitors1 of a maverick firm that plays a disruptive role in the market--by using an innovative business model or technology1 offering lower prices or new1 different products or services products1 or by other means that benefit consumers--can present a threat to competition2 7#ad7 section #g of the ,clayton ,act 7#ae ,u4,s4,c4 #ah71 is the primary line of defense against anticompetitive mergers2 and 7#ae7 in recent years1 some court decisions and enforcement policies have limited the vitality of the ,clayton ,act to prevent harmful consolidation by-- 7,a7 discounting previously accepted presumptions that certain acquisitions are anticompetitive2 7,b7 focusing inordinately on the effect of an acquisition on price in the short term1 to the exclusion of other potential anticompetitive effects2 7,c7 underestimating the dangers that horizontal1 vertical1 and conglomerate mergers will lower quality1 reduce choice1 impede innovation1 exclude competitors1 increase entry barriers1 or create buyer power1 including monopsony power2 and 7,d7 requiring the government to prove harmful effects of a proposed merger to a near certainty4 7b7 ,purposes ,the purposes of this ,act are to-- 7#a7 enhance competition throughout the ,american economy by strengthening antitrust enforcement by the ,department of ,justice1 the ,federal ,trade ,commission1 the ,state enforcement agencies1 and private parties2 7#b7 revise the legal standard under section #g of the ,clayton ,act to better enable enforcers to arrest the likely anticompetitive effects of harmful mergers in their incipiency1 as ,congress intended1 by clarifying that the potential effects that may justify prohibiting a merger under the ,clayton ,act include lower quality1 reduced choice1 reduced innovation1 the exclusion of competitors1 or increased entry barriers1 in addition to increased price to buyers or reduced price to sellers2 7#c7 amend the ,clayton ,act to clarify that an acquisition that tends to create a monopsony violates the ,clayton ,act2 and 7#d7 establish simple1 cost-effective decision rules that require the parties to certain acquisitions that either significantly increase concentration or are extremely large bear the burden of establishing that the acquisition will not materially harm competition4 #c4 ,definition ,in this ,act the term antitrust laws-- 7#a7 has the meaning given the term in the first section of the ,clayton ,act 7#ae ,u4,s4,c4 #ab72 and 7#b7 includes-- 7,a7 section #e of the ,federal ,trade ,commission ,act 7#ae ,u4,s4,c4 #de7 to the extent that such section applies to unfair methods of competition2 and 7,b7 this ,act and the amendments made by this ,act4 #d4 ,unlawful acquisitions 7a7 ,market power ,section #a7;a7 of the ,clayton ,act 7#ae ,u4,s4,c4 #ab7;a77 is amended by adding at the end the following3 the term market power in this ,act means the ability of a person1 or a group of persons acting in concert1 to profitably impose terms or conditions on counterparties1 including terms regarding price1 quantity1 product or service quality1 or other terms affecting the value of consideration exchanged in the transaction1 that are more favorable to the person or group of persons imposing them than what the person or group of persons could obtain in a competitive market4 4 7b7 ,unlawful acquisitions ,section #g of the ,clayton ,act 7#ae ,u4,s4,c4 #ah7 is amended-- 7#a7 in the first and second undesignated paragraphs1 by striking substantially to lessen each place that term appears and inserting to create an appreciable risk of materially lessening2 7#b7 by inserting or a monopsony after monopoly each place that term appears2 and 7#c7 by adding at the end the following3 ,in a case brought by the ,united ,states1 the ,federal ,trade ,commission1 or a ,state attorney general1 a court shall determine that the effect of an acquisition described in this section may be to create an appreciable risk of materially lessening competition or to tend to create a monopoly or a monopsony1 in or affecting commerce1 if-- 7#a7 the acquisition would lead to a significant increase in market concentration in any relevant market2 7#b7 7,a7 the acquiring person has a market share of greater than #ej percent or otherwise has significant market power1 as a seller or a buyer1 in any relevant market1 and as a result of the acquisition1 the acquiring person would obtain control over entities or assets that compete or have a reasonable probability of competing with the acquiring person in the same relevant market2 or 7,b7 as a result of the acquisition1 the acquiring person would obtain control over entities or assets that have a market share of greater than #ej percent or otherwise have significant market power1 as a seller or a buyer1 in any relevant market1 and the acquiring person competes or has a reasonable probability of competing with the entities or assets over which it would obtain control1 as result of the acquisition1 in the same relevant market2 7#c7 the acquisition would lead to the combination of entities or assets that compete or have a reasonable probability of competing in a relevant market1 and either the acquiring person or the entities or assets over which it would obtain control prevents1 limits1 or disrupts coordinated interaction among competitors in a relevant market or has a reasonable probability of doing so2 7#d7 the acquisition-- 7,a7 would likely enable the acquiring person to unilaterally and profitably exercise market power or materially increase its ability to do so2 or 7,b7 would materially increase the probability of coordinated interaction among competitors in any relevant market2 or 7#e7 7,a7 the acquisition is not a transaction that is described in section #g;,a7c72 and 7,b7 7i7 as a result of such acquisition1 the acquiring person would hold an aggregate total amount of the voting securities and assets of the acquired person in excess of #e1jjj1jjj1jjj 7as adjusted and published for each fiscal year beginning after ,september #cj1 #bjbb1 in the same manner as provided in section #h7;a77#e7 to reflect the percentage change in the gross national product for such fiscal year compared to the gross national product for the year ending ,september #cj1 #bjba72 or 7ii7 7,i7 the person acquiring or the person being acquired has assets1 net annual sales1 or a market capitalization greater than #ajj1jjj1jjj1jjj 7as so adjusted and published72 and 7,,ii7 as a result of such acquisition1 the acquiring person would hold an aggregate total amount of the voting securities and assets of the acquired person in excess of #ej1jjj1jjj 7as so adjusted and published71 unless the acquiring or acquired person establish1 by a preponderance of the evidence1 that the effect of the acquisition will not be to create an appreciable risk of materially lessening competition or tend to create a monopoly or a monopsony4 ,in this paragraph1 the term materially means more than a de minimis amount4 4 #e4 ,post-settlement data ,section #g;,a of the ,clayton ,act 7#ae ,u4,s4,c4 #ah;a7 is amended by adding at the end the following3 7l7 7#a7 ,each person who enters into an agreement with the ,federal ,trade ,commission or the ,united ,states to resolve a proceeding brought under the antitrust laws or under the ,federal ,trade ,commission ,act 7#ae ,u4,s4,c4 #da et seq47 regarding an acquisition with respect to which notification is required under this section shall1 on an annual basis during the #e-year period beginning on the date on which the agreement is entered into1 submit to the ,federal ,trade ,commission or the ,assistant ,attorney ,general1 as applicable1 information sufficient for the ,federal ,trade ,commission or the ,united ,states1 as applicable1 to assess the competitive impact of the acquisition1 including-- 7,a7 the pricing1 availability1 and quality of any product or service1 or inputs thereto1 in any market1 that was covered by the agreement2 7,b7 the source1 and the resulting magnitude and extent1 of any cost-saving efficiencies or any benefits to consumers or trading partners that were claimed as a benefit of the acquisition and the extent to which any cost savings were passed on to consumers or trading partners2 and 7,c7 the effectiveness of any divestitures or any conditions placed on the acquisition in fully restoring competition4 7#b7 ,the requirement to provide the information described in paragraph 7#a7 shall be included in an agreement described in that paragraph4 7#c7 ,the ,federal ,trade ,commission1 with the concurrence of the ,assistant ,attorney ,general1 by rule in accordance with section #eec of title #e1 ,united ,states ,code1 and consistent with the purposes of this section-- 7,a7 shall require that the information described in paragraph 7#a7 be in such form and contain such documentary material and information relevant to an acquisition as is necessary and appropriate to enable the ,federal ,trade ,commission and the ,assistant ,attorney ,general to assess the competitive impact of the acquisition under paragraph 7#a72 and 7,b7 may-- 7i7 define the terms used in this subsection2 7ii7 exempt1 from the requirements of this section1 information not relevant in assessing the competitive impact of the acquisition under paragraph 7#a72 and 7iii7 prescribe such other rules as may be necessary and appropriate to carry out the purposes of this section4 4 #f4 ,federal ,trade ,commission study ,not later than #b years after the date of enactment of this ,act1 the ,federal ,trade ,commission1 in consultation with the ,securities and ,exchange ,commission1 shall conduct and publish a study1 using any compulsory process necessary1 relying on public data and information if available and sufficient1 and incorporating public comment on-- 7#a7 the extent to which an institutional investor or related institutional investors have ownership or control interests in competitors in moderately concentrated or concentrated markets2 7#b7 the economic impacts of such overlapping ownership or control2 and 7#c7 the mechanisms by which an institutional investor could affect competition among the companies in which it invests and whether such mechanisms are prevalent4 #g4 ,,gao studies 7a7 ,in general ,not later than #ah months after the date of enactment of this ,act1 the ,comptroller ,general of the ,united ,states shall-- 7#a7 conduct a study to assess the success of merger remedies required by the ,department of ,justice or the ,federal ,trade ,commission in consent decrees entered into since #f years prior to the date of enactment of this ,act1 including the impact on maintaining competition1 a comparison of structural and conduct remedies1 and the viability of divested assets2 and 7#b7 conduct a study on the impact of mergers and acquisitions on wages1 employment1 innovation1 and new business formation4 7b7 ,update ,the ,comptroller ,general of the ,united ,states shall-- 7#a7 update the study under paragraph 7#a7 #c years and #f years after the date of enactment of this ,act based on the information provided under section #g;,a7l7 of the ,clayton ,act1 as added by section #e of this ,act2 and 7#b7 identify specific remedies or alleged merger benefits that require additional information or research4 #h4 ,office of ,competition ,advocate 7a7 ,definitions ,in this section-- 7#a7 the term agency has the meaning given the term in section #eea of title #e1 ,united ,states ,code2 7#b7 the term covered company means any company that has1 at any time1 been required to make a filing under section #g;,a of the ,clayton ,act 7#ae ,u4,s4,c4 #ah;a72 7#c7 the term ,office means the ,office of the ,competition ,advocate established under subsection 7b72 7#d7 the term ,chairman means the ,chairman of the ,commission2 and 7#e7 the term ,commission means the ,federal ,trade ,commission4 7b7 ,establishment ,there is established within the ,federal ,trade ,commission the ,office of the ,competition ,advocate4 7c7 ,competition advocate 7#a7 ,in general ,the head of the ,office shall be the ,competition ,advocate1 who shall-- 7,a7 report directly to the ,chairman2 and 7,b7 be appointed by the ,chairman1 with the concurrence of a majority of the ,commission1 including at least #a ,commissioner who is not a member of the same political party of the majority members of the ,commission1 from among individuals having experience in advocating for the promotion of competition4 7#b7 ,compensation ,the annual rate of pay for the ,competition ,advocate shall be equal to the highest rate of annual pay for other senior executives who report to the ,chairman of the ,commission4 7#c7 ,limitation on service ,an individual who serves as the ,competition ,advocate may not be employed by the ,commission-- 7,a7 during the #b-year period ending on the date of appointment as ,competition ,advocate2 or 7,b7 during the #e-year period beginning on the date on which the person ceases to serve as the ,competition ,advocate4 7d7 ,staff of office ,the ,competition ,advocate1 after consultation with the ,chairman of the ,commission1 shall retain or employ independent counsel1 research staff1 and service staff1 as the ,competition ,advocate determines is necessary to carry out the functions1 powers1 and duties of the ,office4 7e7 ,duties and powers ,the ,competition ,advocate shall-- 7#a7 recommend processes or procedures that will allow the ,federal ,trade ,commission and the ,antitrust ,division of the ,department of ,justice to improve the ability of each agency to solicit reports from consumers1 small businesses1 and employees about possible anticompetitive practices or adverse effects of concentration2 7#b7 publicly provide recommendations to other ,federal agencies about administrative actions that may have anticompetitive effects and the potential harm to competition if those actions are carried out2 7#c7 provide recommendations to other ,federal agencies about administrative actions that may have procompetitive effects and the potential benefit to competition if those actions are carried out2 7#d7 publish periodic reports on-- 7,a7 market competition and its impact on the ,united ,states1 local geographic areas1 and different demographic and socioeconomic groups2 and 7,b7 the success of remedies required by the ,department of ,justice or the ,federal ,trade ,commission in consent decrees2 7#e7 collect data regarding concentration levels across industries and the impact and degree of antitrust enforcement2 and 7#f7 standardize the types and formats of data reported and collected4 7f7 ,subpoena authority 7#a7 ,in general ,the ,competition ,advocate may either require the submission of or accept voluntary submissions of periodic and other reports from any covered company for the purpose of assessing competition and its impact on the ,united ,states1 local geographic areas1 and different demographic and socioeconomic groups4 7#b7 ,written finding ,before issuing a subpoena to collect the information described in paragraph 7#a71 the ,competition ,advocate shall make a written finding that-- 7,a7 the data is required to carry out the functions of the ,competition ,advocate2 and 7,b7 the information is not available from a public source or another agency4 7#c7 ,mitigation of report burden ,before requiring the submission of a report from any company required to make a filing under section #g;,a of the ,clayton ,act 7#ae ,u4,s4,c4 #ah;a71 the ,competition ,advocate shall-- 7,a7 coordinate with other agencies or authority2 and 7,b7 whenever possible1 rely on information available from such agencies or authority4 7g7 ,data center 7#a7 ,establishment ,there is established within the ,office the ,data ,center4 7#b7 ,duties ,the ,data ,center shall-- 7,a7 collect1 validate1 and maintain data obtained from agencies1 as defined in section #eea of title #e1 ,united ,states ,code1 commercial data providers1 publicly available data sources1 and any covered company2 and 7,b7 prepare and publish1 in a manner that is easily accessible to the public-- 7i7 a concentration database2 7ii7 a merger enforcement database2 7iii7 any other database that the ,competition ,advocate determines is necessary to carry out the duties of the ,office2 and 7iv7 the format and standards for ,office data1 including standards for reporting financial transaction and position data to the ,office4 7#c7 ,regulations ,the ,competition ,advocate shall promulgate regulations relating to the collection and standardizing of data under paragraph 7#b74 7#d7 ,confidentiality 7,a7 ,in general ,the ,data ,center may not disclose any confidential data collected under paragraph 7#b74 7,b7 ,requirements ,data obtained from an agency shall be subject to the same confidentiality requirements and protection as the agency providing the data4 7,c7 ,information security ,the ,competition ,advocate shall ensure that data collected and maintained by the ,data ,center are kept secure and protected against unauthorized disclosure4 7h7 ,division of market analysis 7#a7 ,establishment ,there is established within the ,office the ,division of ,market ,analysis4 7#b7 ,leadership ,the head of the ,division of ,market ,analysis shall be the ,director of ,market ,analysis1 who shall-- 7,a7 report directly to the ,competition ,advocate2 and 7,b7 be appointed by the ,competition ,advocate1 with the concurrence of a majority of the ,commission1 including at least one ,commissioner who is not a member of the same political party of the majority members of the ,commission4 7#c7 ,division staff ,the ,division of ,market ,analysis shall retain or employ independent legal1 economic1 research1 and service staff sufficient to carry out the functions1 powers1 and duties of the ,division4 7#d7 ,duties and powers ,the ,division of ,market ,analysis-- 7,a7 shall1 at the direction of the ,competition ,advocate or the ,commission1 conduct investigations of markets or industry sectors to analyze the competitive conditions and dynamics affecting such markets or industry sectors1 including the effects that market concentration1 mergers and acquisitions1 certain types of agreements1 and other forms of business conduct have on competition1 consumers1 workers and innovation1 and shall publish reports on the results of such investigations2 7,b7 shall1 at the direction of the ,competition ,advocate or the ,commission1 conduct investigations concerning the competitive effects of acquisitions that have been consummated no less than #b years prior to the start of the investigation1 which shall include recommendations concerning appropriate enforcement action to remedy any anticompetitive effects discovered and may include assessments of-- 7i7 the conditions of the relevant markets affected by the acquisition1 over the period since the acquisition was consummated1 including1 but not limited to1 the potential impact that the acquisition has had on-- 7,i7 the prices of goods or services1 including wages in any affected labor markets2 7,,ii7 the output and quality of goods and services2 7,,iii7 the entry or exit of competitors2 7,,iv7 innovation2 7,v7 consumer choice and product variety2 7,,vi7 the opportunity of suppliers and works to sell their product or services2 7,,vii7 coordinated interaction between competitors2 and 7,,viii7 subsequent mergers and acquisitions activity2 7ii7 whether the acquiring person or its successors in interest-- 7,i7 complied with all obligations under any agreement with the ,federal ,trade ,commission1 the ,united ,states1 or ,state law enforcement authorities to resolve a proceeding brought under the antitrust laws2 and 7,,ii7 achieved measurable1 transaction-specific efficiencies1 which did not arise from anticompetitive reductions of output1 as a result of the acquisition2 and 7iii7 whether any agreements with the ,federal ,trade ,commission or the ,united ,states to resolve a proceeding brought under the antitrust laws regarding the acquisition was effective in mitigating the anticompetitive effects from the acquisition2 7,c7 shall rely on public data and information1 public comment1 information from other ,federal agencies1 information from the ,data ,center1 information obtained pursuant to the ,competition ,advocate's subpoena authority under subsection 7f7 of this section and may use compulsory process under section #f7;b7 of the ,federal ,trade ,commission ,act 7#ae ,u4,s4,c4 #df7;b77 as necessary to carry out the functions set forth in subsections 7h77#c77;,a7 and 7h77#c77;,b7 of this section2 and 7,d7 shall report any evidence it obtains that any person1 partnership1 or corporation has engaged in transactions or conduct that may constitute of a violation of the antitrust law to the ,commission1 which may institute further investigation1 initiate enforcement proceedings1 or refer such evidence to the ,attorney ,general4 #i4 ,market definition 7a7 ,in general ,establishing liability under the antitrust laws does not require the definition of a relevant market1 except when the definition of a relevant market is required1 to establish a presumption or to resolve a claim1 under a statutory provision that explicitly references the terms relevant market1 market concentration1 or market share4 ,statutory references to the term line of commerce shall not constitute an exception to the foregoing rule that establishing liability under the antitrust laws does not require the definition of a relevant market4 7b7 ,direct evidence ,if direct evidence in the record is sufficient to prove actual or likely harm to competition1 an appreciable risk to competition sufficient to satisfy the applicable statutory standard1 or that the effect of an acquisition subject to section #g of the ,clayton ,act 7#ae ,u4,s4,c4 #ah7 may be to create an appreciable risk of materially lessening competition or to tend to create a monopoly or a monopsony1 neither a court nor the ,federal ,trade ,commission shall require definition of a relevant market in order to evaluate the evidence1 to find liability1 or to find that a claim has been stated under the antitrust laws4 7c7 ,rule of construction ,nothing in this section may be construed to prevent a court or the ,federal ,trade ,commission from considering evidence relating to the definition of proposed relevant markets to evaluate the merits of a claim under the antitrust laws4 #aj4 ,additional remedies2 rules of construction 7a7 ,additional remedies ,the rights and remedies provided under this ,act are in addition to1 not in lieu of1 any other rights and remedies provided by ,federal law1 including under section #d1 #d;,a1 #ae1 or #af of the ,clayton ,act 7#ae ,u4,s4,c4 #ae1 #ae;a1 #be1 #bf7 or section #ac7;b7 of the ,federal ,trade ,commission ,act 7#ae ,u4,s4,c4 #ec7;b774 7b7 ,rules of construction ,nothing in this ,act may be construed to-- 7#a7 impair or limit the applicability of any of the antitrust laws2 and 7#b7 prohibit any other remedy provided by ,federal law4