President Biden signed an ambitious Executive Order on July 9, 2021, which pushes several federal agencies to advance competition principles in a range of economic sectors, and establishes a White House Competition Council within the Executive Office of the President. Much of the Executive Order is broad and its true effects are not likely to be felt until those efforts play out in a variety of rulemakings and other agency proceedings and likely subsequent litigations.

On Friday, July 9, 2021, President Biden issued an Executive Order announcing that his Administration would prioritize steps to “address overconcentration, monopolization, and unfair competition in the American economy” (Competition Order). Described in a White House press release as a bold “whole-of-government effort,” the Competition Order sets out and reaffirms the Administration’s antitrust policy and encourages or directs federal agencies to take dozens of specific measures in key economic sectors to further this policy.

Takeaways

A number of federal agencies, in addition to the DOJ and the FTC, have historically played a role in promoting competition across industries. The Competition Order is directing executive agencies and encouraging independent agencies both to intensify those efforts and to implement policy priorities in furtherance of that objective via rulemaking or other agency efforts. While the Competition Order does include several specific initiatives that various agencies may adopt, much of the Competition Order is quite broad and, rather than enacting specific changes, directs or encourages federal agencies to consider potential rulemaking on topics as diverse as merger enforcement, Internet access, banking, and agribusiness. As a result, the true effects of the Competition Order are not likely to be felt until those efforts play out in a variety of rulemakings and other agency proceedings in the ensuing months and years. Many agency actions resulting from the Competition Order will be subject to legal challenge.

(more…)