Trump Antitrust Candidate Pushed Envelope to Support Deals

(Bloomberg) -- The Trump team is considering giving a top antitrust post to a former U.S. trade commissioner whose hands-off views on competition have at times failed to withstand court scrutiny.

Joshua Wright, a conservative law professor who heads President-elect Donald Trump’s transition team for the Federal Trade Commission, is under consideration to lead the Justice Department’s antitrust division, two people with knowledge of the deliberations said. Others may also still be in the running.

The post would give Wright oversight of corporate mergers. A Republican who served as an FTC commissioner from 2013 to 2015, Wright promotes a laissez-faire approach to antitrust enforcement and has been outspoken about how consolidation can benefit consumers. He’s also a strong advocate for using economic analysis to inform enforcement decisions.

The president-elect met with Wright on Monday, Trump spokesman Sean Spicer said. Wright declined to comment about being under consideration for the position. If nominated, he would have to be approved by the Republican-controlled Senate.

Obama Legacy

Wright would take the post as the Obama administration wraps up one of the most active periods in antitrust enforcement, opposing deals in the cable television, oil services and health insurance markets. The division is currently reviewing major mergers, including proposed tie-ups between AT&T Inc. and Time Warner Inc., Bayer AG and Monsanto Co., and Dow Chemical Co. and DuPont Co.

"Josh would be an exceptional pick for the job," said Geoff Manne, executive director of the International Center for Law & Economics, a policy-research group based in Portland, Oregon. "As pressure mounts to use antitrust to further populist ends, we need more than ever a restrained and economically rigorous approach to antitrust enforcement," said Manne, who has authored research papers with Wright. 

Another candidate is Makan Delrahim, an antitrust attorney at Brownstein Hyatt Farber Schreck LLP, two other people said. Delrahim is a former deputy assistant attorney general at the antitrust division, where he worked on international antitrust issues and appellate litigation. He was also chief counsel at the Senate Judiciary Committee.

Both the FTC and the Justice Department enforce antitrust laws against anticompetitive conduct as well as overseeing merger reviews. If Wright gets the job, he would have more power at the Justice Department than he did at the FTC. At the antitrust division, he would be the key decision-maker about whether to approve mergers or file lawsuits to block them, while the FTC requires a majority vote by the five-member panel for enforcement actions. 

In a New York Times column in November, Wright criticized calls among some progressives for stepped-up antitrust enforcement. He said the view that higher concentration in an industry necessarily leads to reduced competition and price increases is flawed.

“The quiet consensus among antitrust economists in academia and within the two antitrust agencies is that mergers between competitors do not often lead to market power but do often generate significant benefits for consumers — lower prices and higher quality. Sometimes mergers harm consumers, but those instances are relatively rare,” he wrote.

Dissents Contradicted

Some of Wright’s FTC dissents have been contradicted by the courts.

After the agency filed a lawsuit to block Sysco Corp.’s takeover of US Foods, Wright tweeted that he had “no reason to believe” the deal violated federal law prohibiting anticompetitive mergers. That view was rejected by a federal judge who sided with the rest of the commission and blocked the deal.

He also opposed the FTC’s decision that McWane Inc., a supplier of iron-pipe fittings used in municipal water systems, engaged in illegal conduct to maintain a monopoly. Wright said the case lacked evidence that McWane harmed competition. A federal appeals court later said Wright was relying on a heightened standard of proof that had no support in the law.

"He is out of step with how courts have interpreted the antitrust laws," said Allen Grunes, a lawyer with the Konkurrenz Group in Washington who also served in the Justice Department’s antitrust division. "Courts have condemned mergers and conduct as illegal that he thinks are just fine. That’s a concern for someone running a law enforcement agency."

Wright has opposed some of the Obama administration’s biggest efforts to protect consumers, including the open-internet rule known as net neutrality. Regulating internet providers under a decades-old law “is sort of like Intel using a hammer and a sickle to manufacture semiconductors,” he said in a 2015 speech to members of the Federalist Society, a conservative Washington policy group.

He also spoke out against the creation of the Consumer Financial Protection Bureau, saying it would likely cause more harm than good for consumers.

Google Funding

Wright, who has written research funded by Google Inc., is a senior counsel and member of the antitrust practice in the Washington office of Wilson Sonsini Goodrich & Rosati, which also does work for Google. He is also executive director of the Global Antitrust Institute and a professor of law and economics at George Mason University, where he specializes in antitrust law, economics and consumer protection, according to the firm’s website.

The Justice Department antitrust division has been run by Renata Hesse since April 2015. She led its opposition to Comcast Corp.’s proposed takeover of Time Warner Cable Inc., which the companies abandoned. The division also filed lawsuits seeking to block Anthem Inc.’s merger with Cigna Corp. and Aetna Inc.’s tie-up with Humana Inc., both of which are awaiting rulings.

To contact the reporters on this story: David McLaughlin in Washington at dmclaughlin9@bloomberg.net, Jennifer Jacobs in Washington at jjacobs68@bloomberg.net. To contact the editors responsible for this story: Sara Forden at sforden@bloomberg.net, Craig Gordon at cgordon39@bloomberg.net, David S. Joachim