Biden’s Executive Order and the Shifting US Antitrust Landscape

By: Douglas Tween, William Huynh, Ben Bauer & Chloe Shostak (Linklaters)

On July 9, 2021 the White House released President Biden’s “Executive Order on Promoting Competition in the American Economy”. The Order’s purview stretches beyond the country’s antitrust agencies and into the broader administrative state, targeting particular industries of concern to the Administration. Its stated purpose is “to combat the excessive concentration of industry, the abuses of market power, and the harmful effects of monopoly and monopsony — especially as these issues arise in labor markets, agricultural markets, internet platform industries, healthcare markets (including insurance, hospital, and prescription drug markets), repair markets, and United States markets directly affected by foreign cartel activity.”

The Order (and the 72 specific initiatives referenced in its Section 5) remains to be implemented and, speaking today, its effects are far from certain. But here are the key components we will be watching:

• A new antitrust voice:  The Order establishes a White House Competition Council within the Executive Office of the President, with the following remit: “The Council shall coordinate, promote, and advance Federal Government efforts to address overconcentration, monopolization, and unfair competition in or directly affecting the American economy.” This includes implementing the administrative actions identified in the Order…

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