II 

115TH CONGRESS 

1ST SESSION S. 1812 

To amend the Clayton Act to modify the standard for an unlawful acquisition, 

and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

SEPTEMBER 14, 2017 

Ms. KLOBUCHAR (for herself, Mrs. GILLIBRAND, Mr. BLUMENTHAL, and Mr. 

MARKEY) introduced the following bill; which was read twice and referred 

to the Committee on the Judiciary 

A BILL 

To amend the Clayton Act to modify the standard for an 

unlawful acquisition, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Consolidation Preven5 tion and Competition Promotion Act of 2017’’. 

6 SEC. 2. FINDINGS AND PURPOSES. 

7 (a) FINDINGS.—Congress finds that— 

8 (1) competitive markets are critical to ensuring 

9 opportunity for all people in the United States; 


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1 (2) when companies compete, businesses offer 

2 the highest quality and choice of goods for the low3 est possible prices to consumers and other busi4 nesses; 

5 (3) competition fosters small business growth, 

6 reduces economic inequality, and spurs innovation; 

7 (4) concentration that leads to market power 

8 and anticompetitive conduct makes it more difficult 

9 for people in the United States to start their own 

10 businesses, depresses wages, and increases economic 

11 inequality; 

12 (5) undue market concentration also contributes 

13 to the consolidation of political power, undermining 

14 the health of democracy in the United States; 

15 (6) the anticompetitive effects of market power 

16 created by concentration include higher prices, lower 

17 quality, significantly less choice, reduced innovation, 

18 foreclosure of competitors, increased entry barriers, 

19 and monopsony power; 

20 (7) monopsony power— 

21 (A) allows a firm to force suppliers of 

22 goods or services to cut their prices to unrea23 sonably low levels, resulting in reduced business 

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1 ability and quality of products and services for 

2 consumers; and 

3 (B) can result in workers being forced to 

4 accept unreasonably low wages; 

5 (8) horizontal consolidation, vertical consolida6 tion, and conglomerate mergers all have potential to 

7 cause anticompetitive harm; 

8 (9) unprecedented consolidation is reducing 

9 competition and threatens to place the American 

10 dream further out of reach for many consumers in 

11 the United States; 

12 (10) since 2008, firms in the United States 

13 have engaged in over $10,000,000,000,000 in merg14 ers and acquisitions; 

15 (11) between 2010 and 2015, there was a 50- 

16 percent increase in the number of mergers and ac17 quisitions reviewed by the Federal Trade Commis18 sion and the Antitrust Division of the Department 

19 of Justice; 

20 (12) the antitrust laws, particularly section 7 of 

21 the Clayton Act (15 U.S.C. 18), are the first line of 

22 defense against anticompetitive mergers; and 

23 (13) in recent years, some court decisions and 

24 enforcement policies have limited the vitality of the 

25 Clayton Act to prevent harmful consolidation by— 


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1 (A) discounting previously accepted pre2 sumptions that certain acquisitions are anti3 competitive; 

4 (B) focusing inordinately on the impact on 

5 price of an acquisition in the short term; 

6 (C) underestimating the dangers that hori7 zontal, vertical, and conglomerate mergers will 

8 lower quality, reduce choice, impede innovation, 

9 exclude competitors, increase entry barriers, or 

10 create monopsony power; and 

11 (D) requiring the government to prove 

12 harmful effects of a merger to a near certainty. 

13 (b) PURPOSES.—The purposes of this Act are to pro14 mote competition and prevent harmful consolidation by re15 storing the original intent of the Clayton Act to address 

16 the full range of anticompetitive harms, including— 

17 (1) eliminating the requirement that a merger 

18 ‘‘substantially’’ lessens competition to clarify that 

19 the Clayton Act prohibits mergers that, as a result 

20 of consolidation, may materially lower quality, re21 duce choice, reduce innovation, exclude competitors, 

22 increase entry barriers, or increase price; 

23 (2) inserting the phrase ‘‘materially’’ to estab24 lish that the plaintiff need not show an acquisition 

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1 tion, but rather show that an acquisition may cause 

2 more than a de minimis amount of harm to competi3 tion; 

4 (3) amending the Clayton Act to include the 

5 term ‘‘monopsony’’ to clarify that an acquisition that 

6 tends to create a monopsony violates the Clayton 

7 Act; and 

8 (4) establishing simple, cost-effective decision 

9 rules that require the parties to certain acquisitions 

10 that either significantly increase consolidation or are 

11 extremely large bear the burden of establishing that 

12 the acquisition will not materially harm competition. 

13 SEC. 3. UNLAWFUL ACQUISITIONS. 

14 Section 7 of the Clayton Act (15 U.S.C. 18) is 

15 amended— 

16 (1) in the first and second undesignated para17 graphs, by striking ‘‘substantially’’ each place that 

18 term appears and inserting ‘‘materially’’; 

19 (2) by inserting ‘‘or a monopsony’’ after ‘‘mo20 nopoly’’ each place that term appears; and 

21 (3) by adding at the end the following: 

22 ‘‘In a case brought by the United States, the Federal 

23 Trade Commission, or a State attorney general, a court 

24 shall determine that the effect of an acquisition described 


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1 in this section may be materially to lessen competition or 

2 create a monopoly or a monopsony if— 

3 ‘‘(1) the acquisition would lead to a significant 

4 increase in market concentration in any line of com5 merce or in any activity affecting commerce in any 

6 section of the country; or 

7 ‘‘(2)(A) the acquisition is not a transaction that 

8 is described in section 7A(c); and 

9 ‘‘(B)(i) as a result of such acquisition, the ac10 quiring person would hold an aggregate total 

11 amount of the voting securities and assets of the ac12 quired person in excess of $5,000,000,000 (as ad13 justed and published for each fiscal year beginning 

14 after September 30, 2018, in the same manner as 

15 provided in section 8(a)(5) to reflect the percentage 

16 change in the gross national product for such fiscal 

17 year compared to the gross national product for the 

18 year ending September 30, 2017); or 

19 ‘‘(ii)(I) the person acquiring or the person being 

20 acquired has assets, net annual sales, or a market 

21 capitalization greater than $100,000,000,000 (as so 

22 adjusted and published); and 

23 ‘‘(II) as a result of such acquisition, the acquir24 ing person would hold an aggregate total amount of 

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1 son in excess of $50,000,000 (as so adjusted and 

2 published), 

3 unless the acquiring and acquired person establish, by a 

4 preponderance of the evidence, that the effect of the acqui5 sition will not be to tend to materially lessen competition 

6 or tend to create a monopoly or a monopsony. In this 

7 paragraph, the term ‘materially lessen competition’ means 

8 more than a de minimis amount.’’. 

9 SEC. 4. POST-SETTLEMENT DATA. 

10 Section 7A of the Clayton Act (15 U.S.C. 18a) is 

11 amended by adding at the end the following: 

12 ‘‘(l)(1) Each person who enters into an agreement 

13 with the Federal Trade Commission or the United States 

14 to resolve a proceeding brought under the antitrust laws 

15 or under the Federal Trade Commission Act (15 U.S.C. 

16 41 et seq.) regarding an acquisition with respect to which 

17 notification is required under this section shall, on an an18 nual basis during the 5-year period beginning on the date 

19 on which the agreement is entered into, submit to the Fed20 eral Trade Commission or the Assistant Attorney General, 

21 as applicable, information sufficient for the Federal Trade 

22 Commission or the United States, as applicable, to assess 

23 the competitive impact of the acquisition, including— 


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1 ‘‘(A) the pricing, availability, and quality of any 

2 product or service, or inputs thereto, in any market, 

3 that was covered by the agreement; 

4 ‘‘(B) the source, and the resulting magnitude 

5 and extent, of any cost-saving efficiencies or any 

6 consumer benefits that were claimed as a benefit of 

7 the acquisition and the extent to which any cost sav8 ings were passed on to consumers; and 

9 ‘‘(C) the effectiveness of any divestitures or any 

10 conditions placed on the acquisition in preventing or 

11 mitigating harm to competition. 

12 ‘‘(2) The requirement to provide the information de13 scribed in paragraph (1) shall be included in an agreement 

14 described in that paragraph. 

15 ‘‘(3) The Federal Trade Commission, with the con16 currence of the Assistant Attorney General, by rule in ac17 cordance with section 553 of title 5, United States Code, 

18 and consistent with the purposes of this section— 

19 ‘‘(A) shall require that the information de20 scribed in paragraph (1) be in such form and con21 tain such documentary material and information rel22 evant to a proposed acquisition as is necessary and 

23 appropriate to enable the Federal Trade Commission 

24 and the Assistant Attorney General to assess the 


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1 competitive impact of the acquisition under para2 graph (1); and 

3 ‘‘(B) may— 

4 ‘‘(i) define the terms used in this sub5 section; 

6 ‘‘(ii) exempt, from the requirements of this 

7 section, information not relevant in assessing 

8 the competitive impact of the acquisition under 

9 paragraph (1); and 

10 ‘‘(iii) prescribe such other rules as may be 

11 necessary and appropriate to carry out the pur12 poses of this section.’’. 

13 SEC. 5. OFFICE OF COMPETITION ADVOCATE. 

14 (a) DEFINITIONS.—In this section— 

15 (1) the term ‘‘agency’’ has the meaning given 

16 the term in section 551 of title 5, United States 

17 Code; 

18 (2) the term ‘‘covered company’’ means any 

19 company that has, at any time, been required to 

20 make a filing under section 7A of the Clayton Act 

21 (15 U.S.C. 18a); 

22 (3) the term ‘‘Office’’ means the Office of the 

23 Competition Advocate established under subsection 

24 (b); 


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1 (4) the term ‘‘Chairman’’ means the Chairman 

2 of the Commission; and 

3 (5) the term ‘‘Commission’’ means the Federal 

4 Trade Commission. 

5 (b) ESTABLISHMENT.—There is established within 

6 the Federal Trade Commission the Office of the Competi7 tion Advocate. 

8 (c) COMPETITION ADVOCATE.— 

9 (1) IN GENERAL.—The head of the Office shall 

10 be the Competition Advocate, who shall— 

11 (A) report directly to the Chairman; and 

12 (B) be appointed by the Chairman, with 

13 the concurrence of a majority of the Commis14 sion, including at least 1 Commissioner who is 

15 not a member of the same political party of the 

16 majority members of the Commission, from 

17 among individuals having experience in advo18 cating for the promotion of competition. 

19 (2) COMPENSATION.—The annual rate of pay 

20 for the Competition Advocate shall be equal to the 

21 highest rate of annual pay for other senior execu22 tives who report to the Chairman of the Commis23 sion. 


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1 (3) LIMITATION ON SERVICE.—An individual 

2 who serves as the Competition Advocate may not be 

3 employed by the Commission— 

4 (A) during the 2-year period ending on the 

5 date of appointment as Competition Advocate; 

6 or 

7 (B) during the 5-year period beginning on 

8 the date on which the person ceases to serve as 

9 the Competition Advocate. 

10 (d) STAFF OF OFFICE.—The Competition Advocate, 

11 after consultation with the Chairman of the Commission, 

12 may retain or employ independent counsel, research staff, 

13 and service staff, as the Competition Advocate determines 

14 is necessary to carry out the functions, powers, and duties 

15 of the Office. 

16 (e) DUTIES AND POWERS.—The Competition Advo17 cate shall— 

18 (1) recommend processes or procedures that 

19 will allow the Federal Trade Commission and the 

20 Antitrust Division of the Department of Justice to 

21 improve the ability of each agency to solicit reports 

22 from consumers, small businesses, and employees 

23 about possible anticompetitive practices or adverse 

24 effects of concentration; 


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1 (2) recommend practices in certain industries 

2 that merit antitrust investigation, but may not rec3 ommend practices in certain industries that do not 

4 merit antitrust investigation or are not anticompeti5 tive; 

6 (3) publicly provide recommendations to other 

7 Federal agencies about administrative actions that 

8 may have anticompetitive effects and the potential 

9 harm to consumers if those actions are carried out; 

10 (4) publish periodic reports on— 

11 (A) market concentration and its impact 

12 on the United States, local geographic areas, 

13 and different demographic and socioeconomic 

14 groups; and 

15 (B) the success of merger remedies re16 quired by the Department of Justice or the 

17 Federal Trade Commission in consent decrees; 

18 (5) collect data regarding concentration levels 

19 across industries and the impact and degree of anti20 trust enforcement; and 

21 (6) standardize the types and formats of data 

22 reported and collected. 

23 (f) SUBPOENA AUTHORITY.— 

24 (1) IN GENERAL.—The Competition Advocate 

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1 untary submissions of periodic and other reports 

2 from any covered company for the purpose of assess3 ing market concentration and its impact on the 

4 United States, local geographic areas, and different 

5 demographic and socioeconomic groups and on the 

6 success of merger enforcement. 

7 (2) WRITTEN FINDING.—Before issuing a sub8 poena to collect the information described in para9 graph (1), the Competition Advocate shall make a 

10 written finding that— 

11 (A) the data is required to carry out the 

12 functions of the Competition Advocate; and 

13 (B) the information is not available from a 

14 public source or another agency. 

15 (3) MITIGATION OF REPORT BURDEN.—Before 

16 requiring the submission of a report from any com17 pany required to make a filing under section 7A of 

18 the Clayton Act (15 U.S.C. 18a), the Competition 

19 Advocate shall— 

20 (A) coordinate with other agencies or au21 thority; and 

22 (B) whenever possible, rely on information 

23 available from such agencies or authority. 

24 (g) DATA CENTER.— 


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1 (1) ESTABLISHMENT.—There is established 

2 within the Office the Data Center. 

3 (2) DUTIES.—The Data Center shall— 

4 (A) collect, validate, and maintain data ob5 tained from agencies, as defined in section 551 

6 of title 5, United States Code, commercial data 

7 providers, publicly available data sources, and 

8 any covered company; and 

9 (B) prepare and publish, in a manner that 

10 is easily accessible to the public— 

11 (i) a concentration database; 

12 (ii) a merger enforcement database; 

13 (iii) any other database that the Com14 petition Advocate determines is necessary 

15 to carry out the duties of the Office; and 

16 (iv) the format and standards for Of17 fice data, including standards for reporting 

18 financial transaction and position data to 

19 the Office. 

20 (3) REGULATIONS.—The Competition Advocate 

21 shall promulgate regulations relating to the collec22 tion and standardizing of data under paragraph (2). 

23 (4) CONFIDENTIALITY.— 


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1 (A) IN GENERAL.—The Data Center may 

2 not disclose any confidential data collected 

3 under paragraph (2). 

4 (B) REQUIREMENTS.—Data obtained from 

5 an agency shall be subject to the same confiden6 tiality requirements and protection as the agen7 cy providing the data. 

8 (C) INFORMATION SECURITY.—The Com9 petition Advocate shall ensure that data col10 lected and maintained by the Data Center are 

11 kept secure and protected against unauthorized 

12 disclosure. 

Æ 


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