Associate Attorney General Stanley E. Woodward Jr. Delivers Remarks at the 53rd Annual Conference on International Antitrust Law and Policy, and Antitrust Economics Workshop at Fordham Law School

Remarks as Prepared for Delivery, “Antitrust Federalism”

Thank you, Maureen. I am grateful to Fordham Law School and the Competition Law Institute for the invitation to be here today.

Let me start by saying that I am incredibly proud of the men and women of the Antitrust Division. The Division’s mission is “to promote competition by enforcing the antitrust laws to protect economic freedom and opportunity on behalf of the American people.”[1] And consistent with that mission, President Trump has made clear that a top priority for his Administration is ensuring that competition results in affordable prices for consumers.[2]

The Division’s attorneys, economists, paralegals, and support staff work tirelessly every day to carry out the agency’s mission. That includes promoting competition in markets that affect every American household, including food, housing, transportation, and healthcare. In recent months, we secured victories in cases involving hospital steering provisions, anticompetitive information sharing among meat processors, and egg price manipulation. And we’ve also defended the American warfighters against anticompetitive deals affecting the defense supply chain, working hand and hand with the Department of War.

On the merger front, we think deeply about the effect our decisions have on the economy. On the one hand, it is important that the Division encourages pro-competitive deals by not imposing an “antitrust tax” on non-problematic transactions. On the other hand, when competitive concerns do arise, we must ensure that we have both the time and information to sufficiently vet transactions. And make no mistake, we will litigate to stop anticompetitive deals.

Along those lines, the Division recently published a new model timing agreement, which — coupled with the return of the phased Second Request — streamlines the merger review process by encouraging earlier consideration of potentially dispositive issues. So far, this streamlined process has worked extremely well. It has allowed the Division to make informed decisions faster: balancing the burden on merging parties with our mandate to enforce the antitrust laws.

We have also tried to expedite relief to American consumers by avoiding years of protracted litigation in the appropriate situations. In many cases, the Division has a choice to engage with the parties and negotiate a solution to guarantee relief instead of assuming the risk that comes with litigation. I come to my role as the Associate Attorney General as a trial lawyer and, as a trial lawyer, I view settlement tradeoffs — in antitrust, as in other domains of law — as relatively straightforward: settlement secures immediate relief that benefits consumers in a matter of weeks or months (not years), while litigation entails delay, uncertainty, and an opportunity cost on the affirmative mandate to protect American consumers.

Of course, this dichotomy oversimplifies things. And it seems antitrust enforcement, like many areas of American law, has become a battlefield for political resistance to the Trump Administration.

In the current environment, when the federal government reaches a settlement that addresses competitive concerns and provides immediate relief to consumers, State AG enforcers often object, seeking either alternative remedies or attempting to undermine the relief obtained by the DOJ. In my view, this tactic has exposed the absolutist approach progressives take on antitrust enforcement — an ideology that is reflexively opposed to any consolidation regardless of real-world effects. But antitrust law rests on law enforcement, not politics. And the enforcement of federal antitrust law operates within a federal system. So let me turn now to the topic of this speech: Antitrust Federalism.

One of the features, or some might say “flaws,” of federal antitrust enforcement is a multiplicity of enforcers. We just heard from Teresa Ribera. And while there are some differences between the EU and American systems, the European Commission is acutely aware of the challenges of coordinating antitrust review among distinct sovereigns.

In the United States, the Department of Justice shares federal enforcement authority with the Federal Trade Commission. Beyond that, fifty-six states and federal territories have the capacity to bring certain antitrust actions. And Congress has also bestowed private persons with a cause of action under federal law to seek relief from antitrust violations.

That’s quite the choir of enforcers, and we do not always sing the same tune. But that doesn’t mean it’s impossible… with a bit of orchestration. The loudest voices tend to be the governmental enforcers — the Antitrust Division, Federal Trade Commission, and state attorneys general. So today, I want to talk about the constitutional and statutory foundation behind our current structure, the parallel yet different roles Congress assigned to federal and state enforcers, and the ways federal and state enforcers manage, notwithstanding all of that complexity, to work together far more often than we work against each other.

I also offer an honest admission: none of this is fully settled, and it probably never will be. That uncertainty; that prospect for future disagreement — is not (necessarily) a design flaw that requires fixing as much as it is an opportunity to brainstorm ways our constitutional republic can operate more efficiently. I think we can all agree that is a goal worth pursuing.

Let’s begin with first principles. Federalism, at its core, is the division of governmental power between separate units. Here, that’s the national government and fifty state governments. Sounds simple, right? But dividing powers between two levels of government and then maintaining those boundaries is anything but simple.

The men who wrote the Constitution knew this; they had just lived through a decade of it. Under the Articles of Confederation, Congress had no power to regulate commerce at all, so the states regulated it themselves, against each other, with predictable results.[3]

For example, states issued their own paper currencies and passed their own debtor-relief laws, so that a creditor in one state might watch a debtor in another state discharge a debt using depreciated money that the debtor’s state simply willed into existence.[4] You can see why this would be a problem.

To say the least, the Constitutional Convention was not motivated by academic interest; it was a response to an existential threat. Washington wrote to Madison in November 1786 that “thirteen sovereignties pulling against each other, and all tugging at the federal head will soon bring ruin on the whole.”[5]

The commerce power Congress exercises today — the one the Sherman and Clayton Acts both rest on — was drafted based on these concerns. It was the Framers’ direct answer to a decade of watching thirteen separate, self-interested economic regulators work with conflicting goals to the detriment of the people. The Framers argued about almost nothing more fiercely at the Constitutional Convention than how much power the new national government should hold relative to the states.

In attempt to resolve these flaws, the Framers reached a compromise in the constitutional design: Article I vests the federal government with enumerated powers — chiefly, for our purposes, the power to regulate interstate and international commerce and to withhold consent, essentially vetoing, any multi-state compact or agreement.[6]  Residual powers were left with the states, a fact affirmed by the Tenth Amendment.[7] And to the extent a conflict arises between the federal and state government in the exercise of their respective constitutional powers, the Supremacy Clause prioritizes the federal government’s policy choice.[8]

Any framework for dividing enforcement authority between the federal government and the states must accommodate and balance their sovereign interests. Tension is unavoidable, and it is part of the constitutional design.

It is no surprise that antitrust law inherited that tension. When Congress passed the Sherman Act in 1890,[9] it did not write on a blank slate. Many states already had their own statutes and common-law doctrines condemning monopolies and restraints of trade. Congress created a federal prohibition to reach commerce crossing state lines. From that moment, American antitrust law was a dual system by design.

Not only are states and the federal government independent, concurrent legislators of antitrust laws, they are independent, concurrent enforcers of the federal antitrust laws. That concurrent authority can be controversial.

The critics’ case is not hard to make.[10] When fifty-six enforcers can each apply the same statutory language to the same transaction, a business weighing a multistate deal faces real uncertainty—not about what the law says, but about how many separate institutional judgments it will need to satisfy before closing, and at what cost in delay and legal fees. Antitrust overenforcement carries significant costs, including abandoned transactions that would have otherwise benefited consumers.[11]

Critics add a second concern: that state enforcers, who are elected and answer to the whims of local constituencies, may more heavily weigh factors federal doctrine has deliberately set aside. While a state may consider a transaction’s effect on small and regional businesses as a matter of prosecutorial discretion, antitrust law protects competition and not competitors, and those specific impacts on competitors do not replace rigorous antitrust review of a transaction’s overall impact on competition.[12]

Defenders of the current system have answers of their own. State attorneys general are often closer to the people affected by a transaction. A system with more than one set of eyes on a transaction, they argue, is more likely to catch a genuine competitive problem than a system with only one.

Concurrent authority becomes especially interesting — and especially complicated — in the merger context, where Congress built a dichotomy into the statute. Section 7 of the Clayton Act sets the substantive standard prohibiting mergers where the effect may be substantially to lessen competition or tend to create a monopoly.[13] Congress then gave very different tools to different plaintiffs for enforcing that standard. In my view, there are at least four distinctions.

First, under Section 15, the United States may sue for injunctive relief without needing to show any injury to itself; proof of the violation is enough, because the United States sues on behalf of the national public interest.[14]

Section 16, by contrast, governs suits by private parties — and it is the provision under which states sue when they seek an injunction under federal law. States suing under Section 16 must show, as any private plaintiff must, a threatened loss or injury to their own interests. The Supreme Court has said that states proceeding under Section 16 can obtain injunctive relief — including divestiture — but they arrive there through the private-plaintiff door, not the sovereign-enforcer door.[15]

Congress made that choice deliberately, not by accident. During debate over the original Clayton Act in 1914, a senator proposed letting state attorneys general sue to enforce the federal antitrust laws as sovereigns, in the name of the United States itself. Congress considered that proposal and rejected it.[16]

Second, the Hart-Scott Rodino Act of 1976 makes companies wait for federal review before closing their deal. The HSR Act created the modern premerger notification system, requiring parties to sizable transactions to file with the Department of Justice and the Federal Trade Commission before closing, and to wait out a review period before consummating the deal.[17] The HSR Act provides both the notice requirement and the opportunity to stop a merger exclusively to the two federal agencies. States do not, and cannot, receive those filings absent the parties’ consent.[18] And states do not have a statutory right to a pre-closing review.

Congress may have contemplated parallel review — by federal and non-federal enforcers — but I doubt it intended a system of sequenced review. There is nevertheless an incentive for private persons, including the states, to weaponize the HSR Act’s grant of pre-closing review to the federal government against merging parties by sticking their feet in the door at the last minute rather than pursuing their interests earlier or seeking post-closing review of the transaction.

This type of gamesmanship, however, should not be permitted by federal courts.[19]

Third, a state suing as a private person must post a bond if it is seeking a preliminary injunction.[20] Posting a bond ensures that a transaction opponent cannot abuse the judicial process by leveraging the imprecision of preliminary relief based on an undeveloped factual record to inflict harm on merging parties. That’s the fundamental legal point we made in the statement of interest we filed this week in the Paramount case.[21]

And fourth, when a state sues to block a deal under Section 16, it is ostensibly doing so in what the Supreme Court has labeled a state’s “quasi-sovereign capacity.” That means it is representing the interests of its constituent citizens, not its own proprietary interests.

But, as many of you know, when seeking an injunction, a plaintiff must demonstrate that the injunction is in the “public interest.”[22] The problem for a state attorney general seeking such relief is that a state represents only the citizens within its borders. And when the federal government makes the determination that a merger is in the public interest of the entire nation, including the citizens of all fifty states, a state cannot go to court and claim that the public interest supports its preliminary injunction request, especially when other states and the federal government disagree.

These four distinctions demonstrate that Congress gave federal enforcers the primary role in merger review. That primary role is especially sensible when a transaction affects the national economy because the benefits and harms of a particular transaction may not be equally distributed. In that scenario, federalism principles require the national government to step in and weigh all the risks and benefits. Otherwise, we’ll suffer from the coordination problems that plagued the states under the Articles of Confederation — in which states abused their powers against one another.[23] If courts fail to police these boundaries, I expect the Supreme Court will receive more petitions, like Iowa’s, invoking its original jurisdiction when states are harmed by other states’ lawsuits challenging large, national mergers.[24]

Finally, I want to clarify what I mean by “federal enforcers.” Some have said that political appointees shouldn’t participate in antitrust enforcement, or at least must defer to unelected officials, also known as the “experts.” Frankly, that idea is blatantly unconstitutional. Under the Constitution, the People elect the President. The President, through his appointees, faithfully executes the nation’s laws.[25] The real danger is not that the President sets lawful priorities for the Executive Branch. The real danger is when unelected officials begin convincing themselves they are entitled to ignore, delay, frustrate, or quietly sabotage those priorities because they believe they know better than the American voters.

This week, the Colorado attorney general gave a speech in which he lamented the involvement of political appointees in antitrust matters.[26] The irony is that he himself is an elected political officer, and is seeking to override the decisions of a Department of Justice run by appointees of a democratically elected President. General Weiser has it backwards. The President and his political appointees have an Article II obligation to represent the public interest in antitrust matters. Not only that, but it’s consistent with our country’s 250-year legacy. After all, Teddy Roosevelt earned his reputation as a “trust buster” in part by directing the Department of Justice to bring the Northern Securities case.[27]

Even General Weiser seems to concede that there is nothing legally problematic, much less improper, about President Roosevelt’s direct involvement in bringing an antitrust case. What, then, is the bona fide legal concern today when Department of Justice leadership implements the President’s antitrust enforcement agenda? Perhaps the real concern is the policy itself. But as an elected official currently running for office, surely General Weiser appreciates that is for the voters to decide policy through the democratic process.

Regardless of Weiser’s misplaced laments, I must say that federal and state antitrust enforcers are often aligned and we continue to cooperate on several investigations.

That cooperation shows up most visibly, and most usefully, precisely where it belongs: mergers with a real, identifiable local footprint. For example, in a recent merger regarding asphalt markets, we partnered with Tennessee to address localized competitive effects.[28]

Yet, there is room for improvement. Smart people have proposed solutions to antitrust law’s federalism troubles. Maybe there should be bright-line rules that assign large, national transactions exclusively to the federal government and local transactions to the states.[29] Or perhaps, as Judge Posner argued, state antitrust authority should be curtailed altogether in favor of a single national enforcer.[30] But those are solutions for Congress to explore.

In the meantime, it is up to us, the federal and state enforcers, to put our best foot forward to productively work together.

What I can tell you, on behalf of the United States Department of Justice Antitrust Division, is this: we take seriously our obligation to be the front-line national enforcer Congress designed us to be, and we take just as seriously our obligation to work as partners, not rivals, with the state attorneys general who share our desire to protect competition in every market across our great nation. When a merger harms local markets, we want the states in the room. When it is national, we expect to lead — but we will work with our state colleagues to help us understand state and local impacts. That give and take is not a weakness in our system of antitrust federalism. It is the system working as Congress intended — imperfect, occasionally contentious, but still very much worth defending. The Antitrust Division will keep doing that work, alongside our state partners, on behalf of the American people whom we both serve. Thank you.