President Biden's Executive Order on Promoting Competition: an Antitrust Analysis

Abstract

In July, 2021, President Biden signed a far ranging Executive Order directed to promoting competition in the American economy. The Order is not limited to antitrust enforcement, but extends over a wide range of situations where more competitive processes or outcomes could be beneficial. The one passage that the Executive Order quotes from a Supreme Court antitrust decision captures its antitrust ideology well – that the Sherman Act:

rests on the premise that the unrestrained interaction of competitive forces will yield the best allocation of our economic resources, the lowest prices, the highest quality and the greatest material progress, while at the same time providing an environment conducive to the preservation of our democratic political and social institutions.

Northern Pac. Ry. Co. v. United States, 356 U.S. 1, 4 (1958) (Black, j.).

At this writing some federal agencies are already responding. This paper examines the Executive Order and considers how it should be implemented. The result could be important shifts in antitrust policy, as well as related policies involving patents, telecommunications, and agriculture.

Keywords: antitrust, monopoly, presidential power, labor, agriculture, economic growth, mergers, right to repair