By Robert J. Kerwin
On July 9, 2021, President Biden issued a comprehensive executive order on competition.
Entitled Promoting Competition In The American Economy
, the order sets forth, in overview, measures designed for federal agencies to coordinate actions to address the problems of unfair competition, overconcentration, and economic consolidation. The executive order acknowledges the harmful anticompetitive effects of monopolies in a number of markets. The healthcare markets specifically cited included insurance, hospital, and prescription drug.
Repair markets specifically addressed
Of significance, Biden’s executive order also addressed, for the first time, "repair markets". The order encourages the Federal Trade Commission to exercise its statutory rulemaking authority in “unfair anticompetitive restrictions on third-party repair or self-repair of items.”
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The order specifically references repair restrictions imposed by "powerful manufacturers that prevent farmers from repairing their own equipment". While some observers have suggested that the omission of reference to medical devices is in some way indicative of an intention not to address medical device repair markets, this potential exclusion is not supported anywhere in the 16-page executive order. Indeed, in Section 5(h)(vii) of the order it encourages the FTC to exercise its authority in “any other unfair industry-specific practices that substantially inhibit competition.”
White House Competition Council established
The order asserts that a "whole of government" approach is necessary to address the overconcentration, monopolization and unfair competition in the American economy. It specifically recognized the overlapping jurisdictions that are frequently created, and encourages agency cooperation in oversight, investigation and remedies. The president’s executive order establishes a White House Competition Council within the executive office of the president that will coordinate the federal government’s efforts, including the development of procedures and best practices for agency cooperation on matters of overlapping jurisdiction.
What is the practical effect of the executive order on competition?
The order variously references a number of departments and agencies, including the Departments of the Treasury, Agriculture, Health and Human Services, and Transportation. The Federal Reserve, FTC, SEC, FDIC, Federal Maritime Commission, CFPB and even the Surface Transportation Board were invited to participate in the White House Competition Council.