The next six months could witness one of the biggest consolidations of corporate power in the United States in almost a century, yet a variety of legal and economic factors may leave the federal government unable to stop it.
The essence of the problem is that during the extended economic crisis created by the coronavirus pandemic, many large companies – and especially their stock market values – have been growing rapidly while their small-business competitors have faced something of an apocalypse. More than 400,000 small businesses have already closed, and millions more are at risk.
Concentration of power in a small number of big companies is not, itself, new. Corporate concentration has grown significantly in recent years, bringing with it increased corporate profits and a falling share of income going to workers, researchers have shown. In addition, corporate capital investment has slowed, and so has the rate of new business formation.
Economists Colleen Cunningham of the London Business School and Florian Ederer and Song Ma of Yale have shown that bigger firms engage in “killer acquisitions”, buying innovative competitors to prevent them from becoming major threats.
What is unusual at this moment is the extreme divergence in the health of different types of companies: Many of the biggest are flush with money, while smaller competitors have never been in more precarious shape.
What is needed to prevent rich companies from engaging in a mass gobbling up of small competitors is for the government antitrust authorities to become more muscular. On the surface, this seems easy to accomplish. After all, either the United States Justice Department or the US Federal Trade Commission (FTC) must pass a judgment that any merger will not reduce competition for it to go through.
But three things make it hard to envision the authorities pursuing a “get tough” strategy at this critical moment.
First, the enforcement budget for antitrust actions was already stretched way too thin even before the current crisis began. That budget has been falling for years and is lower now than it was two decades ago. The entire antitrust division of the Justice Department and the FTC are being forced to operate on less than a single company like Facebook brings in over a few days.
In the past 10 years, the number of merger filings, which notify the authorities of an intended merger, has almost doubled, but the number of enforcement actions taken by the government has actually fallen.
Second, there is an explicit carve-out in the merger guidelines for what is known as the “failing firm defence”. It says, effectively, that a merger will not create more market power (and so can be allowed) if the target was going to die anyway. Unless Congress approves further relief money for small businesses, many of them will die; the number of companies that might fail without a merger is, effectively, unlimited. That short-run complication threatens to open the door to a buying spree.
In the last recession, economist Carl Shapiro of the University of California, Berkeley – at the time serving as deputy assistant attorney-general in the antitrust division – said that in making antitrust assessments, the government needed to distinguish between temporary financial distress and long-term non-viability. It will be critical to reinstate that distinction now.
Third, the federal antitrust record during crises is not reassuring. As University of Michigan law professor Daniel Crane put it in his history of antitrust enforcement: “In the almost 120-year history of the Sherman Act, no political administration has reacted to a crisis by calling for more vigorous enforcement of the antitrust laws.
“To the contrary, administrations of both parties have responded to crises – both martial and economic – by explicitly or implicitly pulling back on antitrust enforcement. Industrialists have used crises as opportunities to deepen their grip on markets.”
The crisis that led to the telecoms collapse of the early 2000s ushered in a huge consolidation of the telecoms industry that has left us with giants like AT&T and Verizon. The financial crisis of a decade or so ago commenced a wave of consolidation in the banking sector.
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