[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]


       OVERSIGHT OF THE DEPARTMENT OF JUSTICE ANTITRUST DIVISION

=======================================================================

                                HEARING

                               BEFORE THE

   SUBCOMMITTEE ON THE ADMINISTRATIVE STATE, REGULATORY REFORM, AND 
                               ANTITRUST

                       COMMITTEE ON THE JUDICIARY

                     U.S. HOUSE OF REPRESENTATIVES

                    ONE HUNDRED EIGHTEENTH CONGRESS

                             FIRST SESSION
                               __________

                       TUESDAY, NOVEMBER 14, 2023
                               __________

                           Serial No. 118-53
                               __________

         Printed for the use of the Committee on the Judiciary
         
         
                     [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]      


               Available via: http://judiciary.house.gov

                               __________

                    U.S. GOVERNMENT PUBLISHING OFFICE
                    
54-185                    WASHINGTON : 2024   


                       COMMITTEE ON THE JUDICIARY

                        JIM JORDAN, Ohio, Chair

DARRELL ISSA, California             JERROLD NADLER, New York, Ranking 
KEN BUCK, Colorado                       Member
MATT GAETZ, Florida                  ZOE LOFGREN, California
ANDY BIGGS, Arizona                  SHEILA JACKSON LEE, Texas
TOM McCLINTOCK, California           STEVE COHEN, Tennessee
TOM TIFFANY, Wisconsin               HENRY C. ``HANK'' JOHNSON, Jr., 
THOMAS MASSIE, Kentucky                  Georgia
CHIP ROY, Texas                      ADAM SCHIFF, California
DAN BISHOP, North Carolina           ERIC SWALWELL, California
VICTORIA SPARTZ, Indiana             TED LIEU, California
SCOTT FITZGERALD, Wisconsin          PRAMILA JAYAPAL, Washington
CLIFF BENTZ, Oregon                  J. LUIS CORREA, California
BEN CLINE, Virginia                  MARY GAY SCANLON, Pennsylvania
KELLY ARMSTRONG, North Dakota        JOE NEGUSE, Colorado
LANCE GOODEN, Texas                  LUCY McBATH, Georgia
JEFF VAN DREW, New Jersey            MADELEINE DEAN, Pennsylvania
TROY NEHLS, Texas                    VERONICA ESCOBAR, Texas
BARRY MOORE, Alabama                 DEBORAH ROSS, North Carolina
KEVIN KILEY, California              CORI BUSH, Missouri
HARRIET HAGEMAN, Wyoming             GLENN IVEY, Maryland
NATHANIEL MORAN, Texas               BECCA BALINT, Vermont
LAUREL LEE, Florida
WESLEY HUNT, Texas
RUSSELL FRY, South Carolina

                                 ------                                

               SUBCOMMITTEE ON THE ADMINISTRATIVE STATE,
                    REGULATORY REFORM, AND ANTITRUST

                     THOMAS MASSIE, Kentucky, Chair

DARRELL ISSA, California             J. LUIS CORREA, California, 
KEN BUCK, Colorado                       Ranking Member
MATT GAETZ, Florida                  HENRY C. ``HANK'' JOHNSON, Jr., 
MIKE JOHNSON, Louisiana                  Georgia
DAN BISHOP, North Carolina           ERIC SWALWELL, California
VICTORIA SPARTZ, Indiana             TED LIEU, California
SCOTT FITZGERALD, Wisconsin          PRAMILA JAYAPAL, Washington
CLIFF BENTZ, Oregon                  MARY GAY SCANLON, Pennsylvania
LANCE GOODEN, Texas                  JOE NEGUSE, Colorado
JEFF VAN DREW, New Jersey            LUCY McBATH, Georgia
BEN CLINE, Virginia                  ZOE LOFGREN, California
HARRIET HAGEMAN, Wyoming             STEVE COHEN, Tennessee
NATHANIEL MORAN, Texas               GLENN IVEY, Maryland

               CHRISTOPHER HIXON, Majority Staff Director
          AMY RUTKIN, Minority Staff Director & Chief of Staff
                            C O N T E N T S

                              ----------                              

                       Tuesday, November 14, 2023

                                                                   Page

                           OPENING STATEMENTS

The Honorable Thomas Massie, Chair of the Subcommittee on the 
  Administrative State, Regulatory Reform, and Antitrust from the 
  State of Kentucky..............................................     1
The Honorable J. Luis Correa, Ranking Member of the Subcommittee 
  on the Administrative State, Regulatory Reform, and Antitrust 
  from the State of California...................................     2
The Honorable Jim Jordan, Chair of the Committee on the Judiciary 
  from the State of Ohio.........................................     3
The Honorable Jerrold Nadler, Ranking Member of the Committee on 
  the Judiciary from the State of New York.......................     4

                                WITNESS

The Hon. Jonathan Kanter, Assistant Attorney General, Antitrust 
  Division, Department of Justice
  Oral Testimony.................................................     6
  Prepared Testimony.............................................     8

          LETTERS, STATEMENTS, ETC. SUBMITTED FOR THE HEARING

All materials submitted for the record by the Subcommittee on the 
  Administrative State, Regulatory Reform, and Antitrust are 
  listed below...................................................    48

Materials submitted by the Honorable J. Luis Correa, Ranking 
  Member of the Subcommittee on the Administrative State, 
  Regulatory Reform, and Antitrust from the State of California, 
  for the record
    An article entitled, ``AbbVie, Amgen Among Coalition Formed 
        to Oppose New Merger Rules,'' Oct. 4, 2023, Bloomberg Law 
        News
    A letter entitled, ``NAM to FTC: Withdraw Proposed Merger 
        Rules,'' Oct. 3. 2023, National Association of 
        Manufactures
    A letter from multiple organizations, to Senator Dick Durbin, 
        Chair of the Senate Committee on the Judiciary from the 
        State of Illinois; Senator Lindsey Graham, Ranking Member 
        of the Senate Committee on the Judiciary from the State 
        of South Carolina; the Honorable Jim Jordan, Chair of the 
        Committee on the Judiciary from the State of Ohio; and 
        the Honorable Jerrold Nadler, Ranking Member of the 
        Committee on the Judiciary from the State of New York
    An article entitled, ``Summers Says Tougher US M&A Rules Seem 
        Like `War on Business,' '' Jul. 20, 2023, Bloomberg
    An article entitled, ``US Pushes to Change EU's Digital 
        Gatekeeper Rules,'' Jan. 31, 2022, Politico
    A letter from various Members of Congress to President Biden, 
        Feb. 23, 2022
    A letter from the Senate Finance Committee to President 
        Biden, Feb. 1, 2022
    A letter from Members of Congress to President Biden, Jun. 
        21, 2023
    A letter from the Senate Finance Committee to President 
        Biden, Mar. 9, 2023
    A press release entitled, ``Digital Markets Act: Commission 
        designates six gatekeepers,'' Sept. 6, 2023, European 
        Commission
A letter from Lina Khan and Jonathan Kanter to Ambassador 
  Katherine Tai, Mar. 22, 2023, to Senator Dick Durbin, Chair of 
  the Senate Committee on the Judiciary from the State of 
  Illinois; Senator Lindsey Graham, Ranking Member of the Senate 
  Committee on the Judiciary from the State of South Carolina; 
  the Honorable Jim Jordan, Chair of the Committee on the 
  Judiciary from the State of Ohio; and the Honorable Jerrold 
  Nadler, Ranking Member of the Committee on the Judiciary from 
  the State of New York; submitted by the Honorable Darrell Issa, 
  a Member of the Subcommittee on the Administrative State, 
  Regulatory Reform, and Antitrust from the State of California, 
  for the record
A letter from the U.S. Chamber of Commerce re antirust guidelines 
  for international enforcement and cooperation, Dec. 1, 2016, 
  submitted by the Honorable Jerrold Nadler, Ranking Member of 
  the Committee on the Judiciary from the State of New York, for 
  the record
Materials submitted by the Honorable Pramila Jayapal, Member of 
  the Subcommittee on the Administrative State, Regulatory 
  Reform, and Antitrust from the State of Washington, for the 
  record
    A letter from the Honorable Pramila Jayapal, Member of the 
        Subcommittee on the Administrative State, Regulatory 
        Reform, and Antitrust from the State of Washington, and 
        Senator Elizabeth Warren from the State of Massachusetts, 
        to Sundar Pichai, CEO, Google LLC, Jan. 5, 2022
    A letter from multiple Members of Congress to President 
        Biden, Nov. 6, 2023,
    A letter from multiple Members of Congress to White House 
        Counsel Ed Siskel, Nov. 13, 2023
A letter from multiple organizations, Nov. 14, 2023, to Senator 
  Dick Durbin, Chair of the Senate Committee on the Judiciary 
  from the State of Illinois; Senator Lindsey Graham, Ranking 
  Member of the Senate Committee on the Judiciary from the State 
  of South Carolina; the Honorable Jim Jordan, Chair of the 
  Committee on the Judiciary from the State of Ohio; and the 
  Honorable Jerrold Nadler, Ranking Member of the Committee on 
  the Judiciary from the State of New York; submitted by the 
  Honorable Scott Fitzgerald, a Member of the Subcommittee on the 
  Administrative State, Regulatory Reform, and Antitrust from the 
  State of Wisconsin, for the record

                                APPENDIX

A letter from Small Business Rising to The Honorable Thomas 
  Massie, Chair of the Subcommittee on the Administrative State, 
  Regulatory Reform, and Antitrust from the State of Kentucky, 
  and the Honorable J. Luis Correa, Ranking Member of the 
  Subcommittee on the Administrative State, Regulatory Reform, 
  and Antitrust from the State of California, submitted by the 
  Honorable Becca Balint, a Member of the Committee on the 
  Judiciary from the State of Vermont, for the record

                 QUESTIONS AND RESPONSES FOR THE RECORD

Questions to the Hon. Jonathan Kanter, Assistant Attorney 
  General, Antitrust Division, Department of Justice, submitted 
  by the Honorable Ken Buck, a Member of the Subcommittee on the 
  Administrative State, Regulatory Reform, and Antitrust from the 
  State of Colorado; the Honorable Scott Fitzgerald, a Member of 
  the Subcommittee on the Administrative State, Regulatory 
  Reform, and Antitrust from the State of Wisconsin; the 
  Honorable Henry C. ``Hank'' Johnson, Jr., a Member of the 
  Subcommittee on the Administrative State, Regulatory Reform, 
  and Antitrust from the State of Georgia; the Honorable Jerrold 
  Nadler, Ranking Member of the Committee on the Judiciary from 
  the State of New York; and the Honorable J. Luis Correa, 
  Ranking Member of the Subcommittee on the Administrative State, 
  Regulatory Reform, and Antitrust from the State of California
    No response received at time of publication

 
       OVERSIGHT OF THE DEPARTMENT OF JUSTICE ANTITRUST DIVISION

                              ----------                              


                       Tuesday, November 14, 2023

                        House of Representatives

               Subcommittee on the Administrative State,

                    Regulatory Reform, and Antitrust

                       Committee on the Judiciary

                             Washington, DC

    The Committee met, pursuant to notice, at 10:09 a.m., in 
Room 2141, Rayburn House Office Building, the Hon. Thomas 
Massie [Chair of the Subcommittee] presiding.
    Members present: Representatives Massie, Jordan, Issa, 
Buck, Gaetz, Spartz, Fitzgerald, Bentz, Cline, Van Drew, 
Hageman, Correa, Nadler, Johnson, Jayapal, Scanlon, Neguse, 
McBath, and Ivey.
    Mr. Massie. The Subcommittee will come to order. Without 
objection, the Chair is authorized to declare a recess at any 
time and that may be necessary today because I believe we are 
going to votes at 10:30 a.m.
    We welcome everyone to today's hearing on Oversight of the 
Department of Justice Antitrust Division. I will now recognize 
myself for an opening statement.
    Assistant Attorney General Jonathan Kanter took the reins 
of the Department of Justice Antitrust Division two years ago 
this month. Today, the Subcommittee will examine and conduct 
oversight of the Antitrust Division's approach during his 
tenure to date. The DOJ's refocusing of efforts and revision of 
antitrust guidelines raises questions for this Committee, but 
it is not just Congress that has taken notice of DOJ's most 
recent actions or lack thereof. Patrick Hedger, Executive 
Director of the Taxpayers Protection Alliance, released a 
statement ahead of today's hearing which reads:

        Working in tandem with the FTC, the DOJ this year issued 
        revised guidelines the agencies will use in evaluating 
        potential antitrust cases. The revised antitrust guidelines fly 
        in the face of established antitrust precedent which focuses on 
        consumer welfare. The new guidelines signal these agencies will 
        pursue cases to achieve policy objectives outside of consumer 
        protection. Essentially, DOJ and FTC want to use antitrust as 
        another tool of administrative fiat to circumnavigate Congress 
        and bully companies into advancing progressive political and 
        policy ends. The latest legal adventurism at these agencies is 
        wasting taxpayer time and resources, chasing novel legal 
        theories beyond the mandate of Congress. These agencies are 
        ripe to be reined in and refocused on basic consumer 
        protection.

    The mission of promoting consumer welfare and promoting 
economic competition that defines the DOJ's Antitrust Division 
seems to have fallen by the wayside of DOJ's current 
initiatives and priorities. The lack of transparency in which 
the DOJ operates raises many questions as to what those 
initiatives and priorities are exactly. We hope to get some 
clarity on that today. We have got a lot to get through so I 
will yield back.
    I now recognize the Ranking Member, Mr. Correa, for an 
opening statement.
    Mr. Correa. Thank you, Mr. Chair. I also want to welcome 
Attorney General Kanter today. As you know, the United States' 
gross domestic product and our economic growth is soaring. 
Unemployment is very low, but still back home, many 
Californians are still struggling. That is why I am pleased to 
welcome you today to talk about the good work you have done. 
Your efforts include efforts to make sure workers are paid 
fairly, that small businesses can succeed, and that consumers 
are protected from artificially high prices. Your efforts have 
helped California, as well as many Americans survive during 
these very difficult times.
    It is also important that Congress and DOJ work together to 
ensure small businesses can also thrive by assuring a plain 
level field--an even playing level field by minimizing 
anticompetitive forces that hinder innovation or opportunities 
because consumers benefit from competition.
    Your testimony, your written testimony, you highlight some 
of the successes that you have heard about. You won a verdict 
against fraudsters who illegally obtained $240 million granted 
by the California Department of Transportation in fraudulent 
contracts. Thank you for that work.
    Generic price area, you have reached deferred prosecution 
agreement against two generic drug manufacturing companies, 
resulting in criminal penalties of $250 million and also 
divestiture of some of their drug lines. Again, ultimately, the 
bottom line is you helped reduce drug prices for consumers in 
California and throughout the United States.
    Of course, the big issue is grocery store prices and I 
applaud your efforts to stop anticompetitive practices that 
have led to increasing food prices at the grocery store. Back 
home, California families have been paying way too much for 
groceries including chicken, pork, and turkey at the grocery 
store.
    Your Antitrust Division efforts have benefited many 
Americans by uplifting them and providing a level playing field 
for businesses. I support your efforts, but I do have some 
concerns. Your expertise at DOJ, you have the primary authority 
to pursue antitrust enforcement, together I should say, with 
the FTC.
    In the airline industry, both the DOJ and DOT have long 
agreed that your department is the lead enforcement agency and 
I agree. I am concerned that the DOT, that is the Department of 
Transportation, has indicated that they may well ignore decades 
of precedent and more importantly, Congressional intent and 
will try to attempt to block mergers and acquisitions when your 
Department of DOJ decides not to pursue legal election or fails 
to secure a verdict in court.
    I fear that if your department supports the DOT's efforts 
to become the enforcer of antitrust laws, this will erode your 
department's legitimacy and undermine the Subcommittee's 
authority and frankly, be a poor use of Federal resources.
    Another area, the Hart-Scott-Rodino changes are being 
proposed. It is my understanding that you have mentioned 
support for the changes to the draft merger guidelines and to 
the proposed changes to the Hart-Scott-Rodino premerger 
notification form, which the FTC developed in concurrence with 
the Antitrust Division. I have heard significant concerns from 
a wide variety of businesses with both of these efforts.
    Let me submit for the record, without objection an article 
dated October 4th on life science organizations opposing these 
new draft merger guidelines; a statement by the National 
Association of Manufactures asking FTC to withdraw the proposed 
changes to the HSR form; letter to Chairs and Ranking Members 
of both houses, including Ranking Member Nadler, from a wide 
swath of businesses, including the Motion Picture Association 
and the Consumer Technology Association, also expressing 
concerns with the proposed HSR form; an article dated July 
20th, 2023, quoting the former Treasury Secretary Summers 
warning that the DOJ and FTC proposed guidelines on mergers and 
acquisitions seem almost like a declaration of war on business.
    Mr. Massie. Without objection.
    Mr. Correa. Mr. Kanter, again, I applaud the work the 
Antitrust Division has done to help American consumers and I 
agree with your goals, but I caution the Division that in 
following its mission to stamp out antitrust violations, it 
needs to be careful not to unintentionally harm competition or 
consumers. We need to make sure that no unintended consequences 
are actually created and more importantly, that you don't hurt 
American jobs.
    Mr. Kanter, you, and I have talked in my office many times 
and we have similar stories, immigration backgrounds. My father 
was lucky. Many decades ago, he landed a good paying unskilled 
labor union job making cardboard boxes in Orange County. He 
wasn't the only one. Hundreds of workers in my community relied 
on that manufacturing plant's jobs for survival, to put food on 
our tables, healthcare, an opportunity for the future, and an 
opportunity for kids from the street to make it to Congress. 
Yet, this employer was a big company and more importantly, it 
was the source of a good union job.
    Thank you for joining us today and I look forward to the 
discussion. With that, Mr. Chair, I yield.
    Mr. Massie. Thank you, Mr. Correa. I now recognize the 
Chair of the Full Committee, Mr. Jordan for his opening 
statement.
    Mr. Jordan. I thank the Chair for his good work for having 
this hearing. Thank you, Mr. Kanter, for being here.
    Across the United States, there is ample evidence of 
collusion between powerful organizations. These groups join 
together to force ESG policies on American consumers and 
businesses and set policies to censor conservative voices. What 
has the Assistant Attorney General for the Antitrust Division 
done to rein in this blatant collusion among the most powerful 
financial institutions and companies in the world? Not much. 
The Assistant Attorney General has inserted himself into trade 
negotiations. He has tried to strip protections for due process 
rights in competitions and trade talks. His tactics have worked 
as the Commerce Department has backtracked on its initial 
position and no longer supports language from the Indo-Pacific 
Economic Framework that protects American businesses. The Biden 
Administration is no longer supporting language that appeared 
in President Trump's U.S.-Mexico-Canada agreement to protect 
Americans.
    The Assistant Attorney General may not be an international 
trade expert, but he should know that the protectionist 
policies by foreign governments like the Chinese Communist 
Party protect foreign businesses and create barriers for 
American business. In addition, the DOJ under Assistant 
Attorney General Kanter has certainly done its fair share of 
losing. For example, when he tried to litigate the same 
criminal price-fixing trial three times resulting in two hung 
juries and ultimately the acquittal of all the defendants.
    The DOJ also has a losing record in civil cases. The DOJ 
has lost three merger challenges and won only one merger 
challenge under the Assistant Attorney General's leadership. 
Based on this record, Assistant Attorney General Kanter needs 
to rearrange his priorities.
    I look forward to hearing from the Assistant Attorney 
General today and to answer for his decisions. With that, Mr. 
Chair, I yield back.
    Mr. Massie. The Chair yields back. I now recognize the 
Ranking Member of the Full Committee, Mr. Nadler, for his 
opening statement.
    Mr. Nadler. Thank you, Mr. Chair. Mr. Chair, a fair, 
competitive, and open market is essential to ensuring economic 
opportunity for all Americans. A competitive marketplace means 
more high-quality jobs and the ability to negotiate higher 
wages or to switch employers. A competitive marketplace means 
small businesses, farmers, and ranchers will have more choice 
among suppliers and buyers leading to more revenue that they 
can reinvest in their businesses. A competitive marketplace 
means entrepreneurs have space to innovate, experiment, and 
pursue new and novel ideas. For consumers, competitive 
marketplace means more choices, lower prices, better service, 
and a better quality of life.
    In short, the marketplace with robust competition is 
essential to preserving our country's role as the world's 
leading economy. Decades ago, the Executive Branch, with the 
assistance of the courts, took a radical turn away from 
enforcement of the antitrust laws which have fostered 
competition and led to unprecedented prosperity for nearly a 
century. That failure by antitrust regulators led to massive 
consolidation across the marketplace and gave rise to a handful 
of dominant companies with the power to squash competition. The 
rise of monopolies and monopsonies in several fields was a boon 
to the corporate class, but it has been devastating to 
consumers, workers, farmers, and small businesses.
    I am pleased that the Biden Administration has begun to 
turn the page and has announced several steps to reinvigorate 
the enforcement of Federal antitrust laws, most notably through 
its 2021 Executive Order titled ``Promoting Competition in the 
American Economy.''
    Since this order was released, the Department of Justice's 
Antitrust Division under Jonathan Kanter has risen to the 
challenge. The Antitrust Division is enforcing the law at 
historic levels, despite being under resourced and 
understaffed. The division has the largest number of active 
civil antitrust cases in decades, affecting corporate 
consolidation across the economy. In agriculture, the division 
has cracked down on illegal schemes that raise the price of 
meat at the grocery store and suppress workers' wages. In 
healthcare, the division has achieved record criminal penalties 
against pharmaceutical companies that fix prices for generic 
drugs. It has taken on major cases to protect consumers in the 
technology sector and in transportation. In the housing market, 
the Division is investigating collusion among landlords to keep 
rent prices high. In government procurement, the Division is 
rooting out collusion in public contracts for the military and 
elsewhere, saving millions of taxpayer dollars.
    Responding to the Biden Administration's call to action, 
the Department of Justice, in coordination with the Federal 
Trade Commission, has released drafter merger guidelines that 
reflect modern market realities and are grounded in Supreme 
Court precedent and are the result of extensive outreach with 
the public over 18 months.
    Following passage of the bipartisan Merger Filing Fees 
Modernization Act during the last Congress, the DOJ, and the 
FTC have also announced draft changes to the Hart-Scott-Rodino 
Act pre-merger filing form which will lessen the burden on 
merging companies and increase efficiency by giving the 
agencies the information they need to assess competitive 
effects early on.
    Thanks to the Biden Administration's whole-of-government 
approach to competition, the economy is making historic gains 
with rapid economic growth, low unemployment, and steady 
progress in fighting inflation after the economic shocks of the 
pandemic.
    By faithfully interpreting the original intent of the 
antitrust laws to ensure fair competition and prices, the 
Division has announced that the party is over for large and 
unfettered corporations. Industry concentration can cost the 
typical American family $5,000 a year. Such concentration 
undermines the ability of Americans to support their families 
or to create the next successful business. That is why 
Assistant Attorney General Kanter is working to protect 
consumers, support workers, level the playing field for small 
businesses and farmers, and ensure our economy continues to 
lead the world.
    Thank you for appearing here today, Mr. Kanter. I 
appreciate the valuable work of the DOJ Antitrust Division and 
all that you do to support its mission. I look forward to your 
testimony and I yield back the balance of my time.
    Mr. Massie. The Ranking Member yields back. Without 
objection all other opening statements will be included in the 
record. We will now introduce today's witness.
    The Honorable Jonathan Kanter, Mr. Kanter is Assistant 
Attorney General for the Antitrust Division at the Department 
of Justice. He was confirmed on November 16, 2021. We welcome 
our witness and thank him for appearing today. I would also 
like to thank Mr. Kanter for making himself available to myself 
and Mr. Correa on an informal basis.
    We will begin by swearing you in, Mr. Kanter. Would you 
please rise and raise your right hand? Do you swear or affirm 
under penalty of perjury that the testimony you are about to 
give is true and correct to the best of your knowledge, 
information, and beliefs so help you God?
    Let the record reflect that the witness has answered in the 
affirmative. Thank you. Please be seated.
    Please know that your written testimony will be entered 
into the record in its entirety. Accordingly, we ask that you 
summarize your testimony today in five minutes. Mr. Kanter, you 
may begin.

             STATEMENT OF THE HON. JONATHAN KANTER

    Mr. Kanter. Thank you, sir. Chair Massie, Ranking Member 
Correa, Chair Jordan, Ranking Member Nadler, and distinguished 
Members of the Subcommittee, it is an honor to appear before 
you today on behalf of the Antitrust Division, the Department 
of Justice.
    Antitrust enforcement is about economic liberty. A vibrant, 
open, and competitive market economy sustains a thriving 
democracy premised on individual liberty. Absent competition, 
real people suffer real harm. Consumers pay more for less. 
Farmers earn less. It is harder to start a business. The 
benefits of the competitive process are too myriad to list, as 
are the devastating consequences of markets that are beset by 
consolidation and collusion.
    Antitrust issues affect every aspect of American life. I am 
mindful that next Thursday is Thanksgiving. For millions of 
Americans, the cost of air travel will decide whether they are 
able to make it home to see loved ones. Families getting 
together to share gratitude and turkey dinners are also facing 
the growing cost of putting food on their tables. For these 
American families, competition or the lack thereof, has real 
consequences. Simply put, harm to competition means harm to 
real people.
    As law enforcers, we must remain steadfast in our efforts 
to hold wrongdoers accountable, especially when there is so 
much at stake. We are taking action where people most feel the 
effects of concentration and we are having success. With your 
indulgence, I would like to share just a handful of our recent 
efforts.
    We have successfully blocked a de facto merger between two 
major airlines that would have caused harm to air travelers 
across the country. We won another large complex civil trial to 
stop the proposed merger of two major book publishers that 
would have harmed authors, readers, and the free exchange of 
ideas. A small number of book publishers shouldn't decide which 
books get published and which do not.
    We have brought numerous actions to protect small farmers, 
family farmers, from powerful middlemen and to protect American 
consumers from higher prices at the grocery store. For example, 
we won commitments from chicken processors to pay over $90 
million in restitution directly to slaughterhouse workers and 
to stop anticompetitive conduct that directly affects chicken 
farmers.
    We recently secured over $220 million in penalties for 
criminal conspiracy by drug companies to raise prices, the 
largest fine ever for a purely domestic cartel. On top of that, 
we secured $50 million in free pharmaceuticals for people in 
need, enforced the drug makers to divest the products at the 
heart of their illegal conspiracy.
    Our work also safeguards government and taxpayers from 
collusion and from fraud. According to the OECD, governments 
around the world pay 20 percent more for public projects due to 
collusion and bid-rigging. To combat this, the Division leads 
the Procurement Collusion Strike Force which combats antitrust 
crimes related to fraudulent schemes that impact government 
procurement, grant, and program funding. In its short 
existence, the Strike Force has been amazingly successful. It 
has launched more than 115 criminal investigations, secured 
more than 50 guilty pleas and trial convictions. Most 
importantly, it saved millions on millions of dollars for 
taxpayers.
    Mr. Chair, with your indulgence, I may have to get your 
input so I can make my own tracker above my lapel, next to my 
lapel, so I can keep track of the skyrocketing number that we 
are saving for taxpayers by rooting out procurement and 
collusion fraud.
    Mr. Massie. Just make sure it goes up and not down.
    Mr. Kanter. Yes, sir. It is, quick. We are also adapting 
our own tools to better meet the moment. That is why we are 
revising the Division's merger guidelines to better reflect the 
law and to address the realities of our modern economy. We are 
also building the technical and substantive infrastructure to 
address competition questions that arise in connection with 
artificial intelligence and other complex digital tools.
    Last year, we launched the broadest enforcement effort on 
record ever to enforce Section 8 of the Clayton Act, an 
important statute that prohibits individuals or their 
representatives from serving on the boards of competing 
companies. We can't do this alone.
    Finally, I would like to take a moment to share my regard 
for the Antitrust Division staff, some of whom are with me here 
today, my valued colleagues, but the entire staff of the 
Antitrust Division. They are among the most exceptional, 
talented attorneys, economists, paralegals, agents, and 
professional staff in the country. Simply put, I am honored 
each day to work with them. Because of their hard work and 
perseverance, I am optimistic that together we will be able to 
meet the moment and the competitive challenges of our future.
    Thank you again for the opportunity to appear here today. I 
look forward to working with Congress to strengthen antitrust 
enforcement and am happy to answer your questions.
    [The prepared statement of the Hon. Kanter follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Massie. Thank you, Mr. Kanter. We will now proceed 
under the five-minute rule with questions. They have called 
votes, but I am going to try and get a Republican and a 
Democrat in before we go to vote. So, I will now recognize the 
gentleman from California, Mr. Issa, for five minutes.
    Mr. Issa. I thank the Chair. Attorney General Kanter, you 
wrote a letter, along with the Federal Trade Commission Chair 
Lina Khan, on March 22nd of this year. Do you remember that 
letter?
    Mr. Kanter. I do.
    Mr. Issa. In that letter, I will just--a brief quote you 
said to the Trade Representative--and I ask unanimous consent 
it be placed in the record.
    Mr. Massie. Without objection.
    Mr. Issa. First, I will quote: ``Sets off concerns about 
the Indo-Pacific economic framework for prosperity.'' This 
framework, as you know, the IPEF, is President Biden's attempt 
to create a trade agreement without Congress being involved. 
You are familiar with that part of the quote, right?
    Mr. Kanter. I have not seen the letter recently, but I take 
your word for it.
    Mr. Correa. OK, well, this document is highly redacted and 
one of the questions I have is under Section 2 of the letter, 
your letter draft competition, we would like to know what was 
under the redactions, particularly Section 3 where they even 
redacted what I believe is the word chapter. In the second one, 
what I can read is a draft competition chapter. Third, it says 
have--``nor had the opportunity to review this provision such 
as provisions could.''
    We are not used to having this level of redaction on a 
nonclassified document. Can you briefly tell us what you said 
in the third paragraph, paraphrase it for us?
    Mr. Kanter. I have to refer your request to Office of 
Legislative Affairs. I believe they provided a confidential 
briefing, bipartisan briefing to staff and I am happy to take 
your questions back.
    Mr. Issa. So, you write a letter between two parts of 
government and then your people turn it into black lines, and 
you won't answer today. Is that correct?
    Mr. Kanter. I can't speak to the redactions. I again will 
have to refer that to our Office of Legislative Affairs.
    Mr. Issa. OK, well, briefly, will you tell me is it correct 
that you wrote a letter out of a concern for the Trade 
Representative's handling of what is yours and the Federal 
Trade Commission's historic duty that it might impact you 
without correspondence with you or particularly with Congress?
    Mr. Kanter. So, what I can say is there is a process in 
place, one that Congress put in place, to make sure that the 
Department of Justice Antitrust Division has the opportunity to 
weigh in on issues that affect competition. Our goal is to make 
sure that we can enforce U.S. laws in U.S. courts. There is an 
interagency process whereby we can provide information, 
questions, or concerns to other government officials who are 
responsible for negotiating trade agreements.
    Mr. Issa. Are you familiar that currently there is a 
process where they sue in foreign countries or implement laws 
in foreign countries and then insist that in order for a 
company do business there, they have to essentially make a 
worldwide agreement? This is particularly true on patents.
    Mr. Kanter. Again, I can't speak to the laws of other 
countries. I am focused on making sure that we are enforcing 
the laws in the United States effectively and in U.S. courts 
consistent with our Constitution.
    Mr. Issa. I want to thank you for some past work done by 
your Division. The Department of Justice went after the 
airlines for price fixing and there were actual convictions, 
American, United, and I think Delta. I am not positive it was 
Delta, but there were three airlines that were involved. It 
went all the way to the CEO level. Do you remember that? Were 
you with them then?
    Mr. Kanter. It predated my arrival.
    Mr. Issa. OK, well, sounds like a good idea, but I happen 
to be in San Diego, and I can tell you that price fixing isn't 
just the money. It is also the routes. I would say that DOJ, 
having had those kinds of consent decrees, having had that kind 
of recognition of criminal conduct at the highest level of the 
airline industry, has failed to look at many areas. San Diego 
happens to be one of them I am experienced in, in which there 
is little or no competition, meaning, for example, from here 
there has historically been one nonstop flight from Dulles--
group of flights, they belong to one airline, United. During 
the same time as the price fixing, American, which had a 
nonstop from DCA to San Diego, quite coveted, canceled it. Only 
recently, Alaska made a decision to add one flight. The 
response from United was to go from two flights a day to three 
flights a day including a super jumbo triple 7 and run them 
empty to eliminate that competition.
    So, I would strongly suggest that in addition to your heavy 
workload that you relook at airline competition, not for the 
overt act of price fixing, but for the basic schedules that, in 
fact, show a convenience of not having overlap so that each of 
them has, if you will, preferred routes.
    Mr. Kanter. Yes, so we have prioritized enforcing the law, 
as appropriate, in this area and we hear concerns in the entire 
country about the lack of affordability and availability of 
flights. We blocked for the first time ever in the history of 
the Antitrust Division a merger of airlines just last year. We 
are in court, as we speak at this very moment, seeking to block 
another. So, we have prioritized this area. Because I said 
before, as we head into Thanksgiving, people are wondering 
whether they can afford to travel across the country and have 
availability to see their family. When people fly to see a sick 
loved one, they should have the right and the opportunity to 
have a competitive fare and competitive benefits of multiple 
routes.
    Mr. Issa. Thank you. I yield back.
    Mr. Massie. The gentleman yields back. This is going to be 
the last question before we break for votes. I am recognizing 
Ranking Member, Mr. Correa, for five minutes.
    Mr. Correa. Thank you very much, Chair, and Mr. Kanter. 
Later, let's talk about this airline merger, Jet Blue and 
Spirit. I understand Jet Blue is losing money, so I would like 
to figure out how they stay in business to continue to provide 
affordable air fares to our consumers. The bottom line, Mr. 
Kanter, I am interested in keeping good, middle-class jobs and 
growing them in California, as well as in the United States. In 
California, a big area for us, film, movie industry, and high 
tech companies. These companies provide trillions of dollars of 
revenue, good jobs, union jobs, and they are taxpayers in 
California, some of the last taxpayers we have. The United 
States has taken the lead--
    Mr. Issa. Speak for yourself.
    Mr. Correa. We will look at your disclosures later, sir, 
and discuss that further. When it comes to digital, the United 
States, in my opinion, still continues to lead the world. We 
probably have a two-year lead on China and Europe, and both are 
trying to catch up, both China and Europe are trying to get 
where the United States is.
    Last year, the Biden Administration raised concerns that 
the European Union would not implement its digital agenda 
fairly, or the DMA. As it turns out, the administration was 
right. The European Union, through its Digital Markets Act, or 
DMA, has targeted American companies for unfair treatment. I 
would ask you, has anyone in the DOJ spoken to European Union 
officials at any point during the development or implementation 
of the DMA? The European Union has essentially designated 
gatekeepers. Of the 22 core platforms named as gatekeepers, 21 
are U.S. firms and one is TikTok, but no European companies 
have been named as gatekeepers.
    Mr. Kanter, I would ask you, do you know why the 
administration has essentially changed course and stopped 
advocating for U.S. interests or have we? Did the Department of 
Justice encourage the administration to change course and weigh 
in with the European Union policies when it came to designated 
gatekeepers?
    Before you answer that question, I have some articles that 
I want to submit for the record without objection.
    Mr. Massie. Without objection.
    Mr. Correa. Thank you. A political article dated January 
31, 2022, it says, ``U.S. Pushes to Change EU's Digital 
Gatekeeper Rules''; bipartisan letters from both House and the 
Senate Members raising similar concerns, Senator Crapo, Wyden, 
as well as DelBene and LaHood.
    Mr. Massie. Without objection.
    Mr. Correa. If I can, Mr. Kanter, just addressing my 
question in general terms, please.
    Mr. Kanter. Thank you, Ranking Member Correa. I want to 
start with the most foundational principle, which is the 
Assistant Attorney General, Department of Justice, the 
Antitrust Division, my responsibility is to make sure that we 
can enforce U.S. law in U.S. courts in a manner consistent with 
our Constitution. It is a long-standing tradition going back to 
many administrations to make sure that we can protect our 
rights to enforce our laws domestically by having proper and 
appropriate coordination with jurisdictions across the world.
    Mr. Correa. Sir, my question was: Did the DOJ weigh in with 
European officials, is there a crafting of DMA and essentially 
naming mostly American firms as gatekeepers?
    Mr. Kanter. That is purely a matter for the European 
Commission. We have--
    Mr. Correa. Did we weigh in on that?
    Mr. Kanter. Let me answer your question, sir, which is that 
we provided an observer after the rules are written, so that we 
can understand how the rules may affect our enforcement 
domestically and that observer was there for a few weeks and is 
now back home. Ultimately, when we interact with our 
counterparts abroad, it is done to improve coordination so that 
we can enforce our laws, U.S. laws in U.S. courts.
    Mr. Correa. Observer, fairness, equity, trade, it is a two-
way street. We just observed and didn't opine?
    Mr. Kanter. We regularly, and this goes back to all 
administrations where there is regularly coordination. In fact, 
I have a letter I got from the Chamber of Commerce or the 
United States Department of Justice got from Chamber of 
Commerce in 2017 requesting more coordination because it often 
helps U.S. businesses when each of the jurisdictions with 
overlapping authorities understand what the other is doing. The 
goal of this work is to make sure understand how it may or may 
not affect U.S. interests and specifically our ability to 
enforce U.S. laws in U.S. courts.
    Mr. Correa. I am out of time, Mr. Chair, but I would like 
to followup on that comment later on. Thank you very much.
    Mr. Massie. The gentleman yields back. The Subcommittee 
will stand in recess until after votes conclude on the floor, 
and I encourage everybody to try to come back here as soon as 
possible as soon as the votes are over. I appreciate the 
indulgence of the witness.
    [Recess.]
    Mr. Massie. The Subcommittee will come to order.
    I would now like to recognize Ms. Hageman from Wyoming for 
five minutes.
    Ms. Hageman. Thank you, Mr. Chair.
    I am concerned, Mr. Kanter, that some of the largest 
players in the investment industry are colluding and conspiring 
and using their power together to force environmental, social, 
and governance policies, also known as ESG, on American 
businesses and consumers. These institutions do not appear to 
care about the preferences of Americans. Instead, they want to 
force their agenda on everyone across this country, even if 
that agenda keeps Americans from having access to a robust 
choice of goods and services.
    Assistant Attorney General Kanter, Supreme Court case law 
makes clear that social justifications do not make 
anticompetitive collusion any less unlawful. That is from 
Superior Court Trial Lawyers Association, a 1990 case. In other 
words, a desirable social policy does not excuse a violation of 
the antitrust laws. Is that correct?
    Mr. Kanter. Absolutely, that is correct.
    Ms. Hageman. OK. The Supreme Court has also made clear that 
courts should reject requests from litigants seeking special 
exemptions or exclusions from the Sherman Act because of 
important social objectives. This means that there is no 
antitrust exemption for good social policy. Is that also 
correct?
    Mr. Kanter. That is also correct. I commend you on your 
command of the antitrust precedents.
    Ms. Hageman. So, regardless of whether the ESG policies are 
good or bad, if those policies restrain trade and lead to 
anticompetitive effects, then those policies violate the 
antitrust laws. Is that also true?
    Mr. Kanter. In all instances, we have to follow the facts 
and the law. As the Supreme Court has said in other contexts, 
``we don't engage in a balancing of social credits and 
debits.''
    Ms. Hageman. OK. The Supreme Court has explained that 
activity that prevents Americans from making free choices 
between market alternatives is inherently destructive of 
competitive conditions and may be condemned. This means that an 
agreement that reduces consumer choice can violate the Sherman 
Act. Would you also agree with that?
    Mr. Kanter. The Sherman Act and the antitrust laws exist to 
promote competition and choice. That is a noble value. Our 
objective at the Antitrust Division is to make sure that we are 
enforcing the law to promote those values.
    Ms. Hageman. Quality, service, safety, and durability, all 
these elements and not just the immediate price are considered 
in the antitrust analysis according to Supreme Court case law, 
correct?
    Mr. Kanter. Correct. I wholeheartedly agree that antitrust 
is not just about price. It is about quality. It is about 
innovation. It is about choice as well, among many other 
things.
    Ms. Hageman. So, competition results not just in lower 
prices, but also in better products. Would you agree with that?
    Mr. Kanter. I absolutely agree with that.
    Ms. Hageman. So, even if an ESG policy that companies 
pursue together doesn't increase prices or decrease output, it 
still might violate the Sherman Act if it reduces product 
quality or limits the choices available to American consumers. 
Is that correct?
    Mr. Kanter. As a foundational matter, the antitrust laws 
are not just about price and output. The antitrust laws are 
about quality, innovation, and choice, among many other values.
    Ms. Hageman. OK. Now, Mr. Kanter, you testified before the 
Senate when you were being considered for confirmation to your 
position as the head of the DOJ Antitrust Division. You took an 
oath and swore to tell the truth at that time. Is that correct?
    Mr. Kanter. Yes.
    Ms. Hageman. You took an oath to tell the truth today as 
well.
    Mr. Kanter. Yes.
    Ms. Hageman. All right. At that hearing, you testified 
that,

        The consumer welfare standard could encompass many factors 
        beyond price, like quality and innovation and consumer choice.

Do you remember that testimony?
    Mr. Kanter. I do.
    Ms. Hageman. OK. You also testified that,

        If confirmed, your focus would be to work with the Department 
        of Justice to enforce the laws as Congress has written them and 
        to make sure that we're protecting competition and the 
        competitive process.

Do you remember that testimony?
    Mr. Kanter. I absolutely do. I agreed with it then. I agree 
with it today.
    Ms. Hageman. All right. Did you testify truthfully at your 
confirmation hearing?
    Mr. Kanter. I did.
    Ms. Hageman. Have you testified truthfully here today?
    Mr. Kanter. Yes.
    Ms. Hageman. Thank you. With that, I yield back.
    Mr. Kanter. Thank you.
    Mr. Massie. The gentlelady yields back. I recognize the 
Ranking Member of the Full Committee, Mr. Nadler, for five 
minutes.
    Mr. Nadler. Thank you, Mr. Chair.
    The Antitrust Division had around 1,000 staffers in 1979. 
Today, even though the division is tasked with overseeing a 
bigger economy and companies that are bigger than some Nation-
States, the division has just a little more than half that 
staff. Despite the lack of adequate resources, the division is 
enforcing the law at historic levels, reviewing over 3,500 
transactions in your first year at the division, a record.
    Mr. Kanter, how is your work affected by insufficient 
resources? How can Congress help support your work through 
appropriations?
    Mr. Kanter. So, as the economy has grown, the complexity of 
antitrust cases has grown exponentially. The amount of 
information and the significance of concentration to the 
American public has grown. We, as you point out, have over 200 
fewer people today than we had in 1979. That is against the 
backdrop of an expanding economy.
    It is essential that we have the resources necessary to 
keep pace with the issues that affect so many Americans, 
whether it is a farmer looking for a reasonable return on 
livestock, a consumer looking for affordable air travel, or a 
consumer concerned about making sure that there is enough 
choice so that they can get access to private communication 
services. These are issues that affect every American and we 
care about deeply. Without sufficient resources, we can't 
adequately protect the American public from the harms that flow 
from anticompetitive conduct and unlawful concentration.
    Mr. Nadler. You have half the staff that you did in 1979.
    Mr. Kanter. I could go back and find the specific numbers. 
When I started at the Antitrust Division, we had over 350 fewer 
people that we had in 1979.
    Mr. Nadler. Thank you. Recently, governments around the 
world have closely analyzed online market concentration. 
Governments from Japan to Brazil, Australia to the EU, and even 
our own Committee have deeply investigated the online market 
finding that the high level of harmful consolidation and 
anticompetitive conduct necessitates new rules and protections.
    In 2016, the Chamber of Commerce urged the Executive Branch 
to coordinate more closely with foreign governments. I ask 
unanimous consent to enter their letter into the record.
    Mr. Massie. Without objection.
    Mr. Nadler. Thank you.
    Now that such international coordination is resulting in 
real change, the Chamber is pushing back on the international 
coordination they called for so forcefully. Mr. Kanter, can you 
share the division's perspective on international coordination?
    Mr. Kanter. So, first and foremost, our job is to make sure 
that we can enforce U.S. laws in U.S. courts. For decades there 
is a bipartisan tradition of making sure that we have the 
appropriate level of coordination, because we live in a global 
economy with international enforcers, so that we can understand 
how their actions abroad and their laws abroad may or may not 
affect our domestic priorities. So, we have continued that 
tradition. At all points, our goal is to make sure we are 
enforcing U.S. law in U.S. courts and protecting our interest 
to enforce U.S. law in U.S. courts.
    Mr. Nadler. Thank you. The DOJ won a court victory in 2022, 
last year, that blocked the merger between two of the five big 
publishing houses, Penguin Random House and Simon & Schuster. I 
believe you referred to this in your opening statement. This 
decisive victory was premised on the fact that according to the 
DOJ the merger would be bad for workers. In this case, the 
writers would get paid less if the two companies consolidated. 
As you said at the approach, we said that workers matter, and 
this kind of harm matters.
    In addition to this case, the department has also taken 
workers into account in the draft merger guidelines under 
consideration at the DOJ and the FTC. Mr. Kanter, can you speak 
more about how antitrust enforcement is critical for workers?
    Mr. Kanter. Absolutely. I think we can all know from our 
own personal experiences that when we have competition for our 
labor, we get better salaries. We get better benefits. We get 
better working conditions. If workers have choice, they can 
earn more money. They could be mobile. They can work not just 
doing what they want to do but where they want to do it, and 
whether it is in a rural community or an urban community.
    So, the antitrust laws were designed by Congress not just 
to protect the ability of consumers to get lower prices. That 
is an important objective of the antitrust laws. It is 
essential that workers, particularly hardworking people working 
for an hourly wage, have the ability to benefit from 
competition.
    Mr. Nadler. Thank you, Mr. Kanter.
    I yield back.
    Mr. Massie. The gentleman yields back.
    I now recognize the gentleman from New Jersey, Mr. Van 
Drew, for five minutes.
    Mr. Van Drew. Thank you, Mr. Chair. Thank you, Assistant 
Attorney General, for being here today.
    Like most Americans, small business owners are struggling. 
They are struggling with an uphill battle against a stagnant 
economy, a struggling supply chain, and ongoing inflation and 
high interest rates. The combination of these results cause 
operating costs to be higher and higher prices for the American 
consumer. I don't want to get into all the reasons for that.
    What many Americans might not know is about a hidden 
factor, a hidden factor that is causing as much if not more 
direct financial pain in their wallets. Each and every one of 
those individuals out there pays for it. Everyone sitting here 
pays it, swipe fees, swipe fees when you process a credit card, 
charged to the business, and sometimes passed on to the 
consumer.
    Believe it or not, and these numbers startled me, these 
hidden fees cost American families as much as $1,000 a month, 
not a year, a month. In my State of New Jersey, swipe fees are 
set to cost residents a staggering $2.74 billion, not million, 
billion dollars.
    While we could debate all day on the causes and solutions 
to inflation, the reason swipe fees are so unfair I believe is 
pretty clear-cut, the duopoly of Visa and Mastercard, these 
corporations wielding control over approximately 80 percent of 
the credit card market, 80 percent of it. They have set swipe 
fee rates that average seven times higher than what those fees 
are, for example, in Europe and other countries, seven times. 
That is a lot. It is unfair. It is unacceptable. It is wrong.
    At a time of great financial struggle, it is unfathomable 
to me that this issue hasn't been addressed. Hopefully we will 
address it through legislation.
    Sir, my questions for you are Visa and Mastercard dictate 
these fees that banks must charge to accept their credit cards. 
It seems like a classic violation to me and to others of 
antitrust. How can you tell this Committee if the DOJ Antitrust 
Division is looking into this market duopoly and what work they 
are doing? If so, what steps will you be taking on what I 
believe is a very paramount issue?
    Mr. Kanter. So, thank you for your interest and your 
comments.
    As I am sure you appreciate it, I can't comment on specific 
companies or specific matters. I greatly appreciate your 
recognition that antitrust enforcement can lead to lower 
prices. It can lead to more competition. It can lead to better 
outcomes for American consumers and, in particular, small 
businesses. So, without weighing in on any specific matter, I 
can say that preserving the ability of small businesses to save 
consumers money is an extremely high priority for the Antitrust 
Division.
    Mr. Van Drew. So, this costs small businesses a lot of 
money. It has gotten worse. It really is a problem. I don't ask 
you to even comment on Mastercard and Visa when we all know, 
everybody in the room knows who the elephant is. Can you 
comment on the idea of swipe fees and that there is so little 
choice?
    See, I believe when somebody processes a credit card, they 
should have a choice. When I say somebody, I mean a business of 
going alternate routes. They don't and we have legislation to 
work on that. Hopefully that will pass through this Congress. I 
would like to know if just in the general idea of it, the 
concept, the philosophy, have you all looked at this at all?
    Mr. Kanter. So, I greatly appreciate the question. I want 
to take great care not to comment on any matter that may or may 
not be pending before the Department of Justice.
    Mr. Van Drew. Not the answer I wanted. There have been a 
lot of recent challenges in the Antitrust Division. I know we 
have talked about a shortage of labor force there. Not to be 
challenging you, but we have had trouble in securing courtroom 
victories recently. I think we would all agree on that.
    Don't you believe that maybe instead of these really 
difficult challenges that you have had with courtroom victories 
it might be better to look at these swipe fees? I guess what I 
am asking you, at least from one Congressman to one Assistant 
Attorney General, could you at least look at this? It is a 
really big deal. People would appreciate it. It affects 
everybody, what age, color, or income category. Every single 
person in America is affected by this.
    Mr. Kanter. Yes, I understand that. I am sure we can talk 
about it. I am extremely proud of our court record, including 
our numerous victories. None of that comes to the exclusion of 
looking at other issues that have a significant impact and 
resonate with the American public and small businesses.
    Mr. Van Drew. I don't want to exclude other issues. I want 
you to look at this issue.
    Mr. Kanter. Duly noted, sir. I appreciate your question. I 
will make sure that we take that back.
    Mr. Van Drew. Thank you.
    I yield back, Chair.
    Mr. Massie. The gentleman yields back.
    I now recognize Ms. Jayapal for five minutes.
    Ms. Jayapal. Thank you, Mr. Chair. Assistant Attorney 
General Kanter, thank you so much for your leadership and for 
the critical work that your office is doing to revitalize 
antitrust enforcement and promote robust competition.
    You entered the Justice Department with bipartisan support 
from nine former antitrust division heads. In your brief time 
with DOJ, the Antitrust Division has already won its first 
criminal antitrust case against employers that sought to 
suppress pay and prevent workers from switching jobs. You have 
opened investigations into corporate monopolies like 
Ticketmaster. You have secured huge settlements for American 
workers, for small businesses, and consumers. You continue to 
vigorously defend our economic security and privacy interests 
in court against big tech giants like Google.
    Now, I know I have heard some of my colleagues say that 
there are businesses that are concerned about some of the work 
that you are doing. I am not surprised, because for the first 
time their lobbying efforts on both sides of the aisle are not 
necessarily working, because for the first time we have a 
Justice Department and an Antitrust Division that is actually 
promoting competition and using the tools that you have. So, I 
for one am very grateful.
    I am disappointed that our bipartisan efforts to strengthen 
competition have stalled in Congress. I am proud that we are 
doing what we can to put antitrust considerations front and 
center. That is why I worked with Ranking Member Nadler to send 
a letter yesterday urging the White House Counsel's office to 
integrate competition-related questions into the 
administration's judicial vetting process.
    I seek unanimous consent, Mr. Chair, to enter into the 
record that letter to White House counsel and the letter I 
signed to President Biden requesting that any digital trade 
provisions of an Indo-Pacific economic framework are consistent 
with his whole-of-government competition policy agenda.
    Mr. Massie. Without objection, so ordered.
    Ms. Jayapal. So, Mr. Kanter, I understand that you prefer 
to litigate cases to a decision instead of seeking settlements. 
Can you briefly explain why?
    Mr. Kanter. Yes. So, we will always entertain remedies when 
they are sufficient to solve the competitive problem. What we 
are not going to do is put the risk of a failed remedy on the 
shoulders of the American public. At the end of the day, 
antitrust is law enforcement. It is about the rule of law. We 
follow the facts and the law wherever it takes us. We bring 
cases to courts. We focus on convincing courts to protect 
competition for the betterment of the American public.
    Again, we will always listen to a settlement proposal if it 
solves the problem. What we are not going to do is to ask the 
American public to shoulder the burden of a failed settlement.
    Ms. Jayapal. Under your leadership, the Antitrust Division 
has helped revive the enforcement of our Nation's antitrust 
laws after decades of neglect. How is your division also 
creating a new antitrust language that remains accessible to 
everyday Americans and reflects how they think about 
competition?
    Mr. Kanter. Wonderful. So, we have created what we call an 
Antitrust Access to Justice program, nicknamed AT2J. It focuses 
on making sure that antitrust, which is the people's law, is 
accessible to the people. Antitrust, for too long, has been the 
exclusive domain of a small number of folks inside the Beltway 
whose exclusionary words and terms and are, have excluded the 
participation of farmers, workers, and small business owners. 
These are the people who are directly affected by corporate 
concentration.
    So, it is important that we make efforts, whether it is in 
how we revise our merger guidelines, how we manage our citizen 
complaint portal, how we go about seeking comments on mergers 
and acquisitions, to include the public, because the public 
matters. We are doing this for the public. We need their input.
    Guess what? They know what they are talking about. Small 
businesses, consumers, and workers, they get it. They 
understand their industries better than we do. By going out and 
talking to them, we can learn what we need to learn to enforce 
the law effectively.
    Ms. Jayapal. That is fantastic. The American people I think 
would be shocked to learn that, despite overseeing a bigger 
economy with more companies and more mergers, the Antitrust 
Division has been operating today with half the staff that the 
Carter Administration had in 1979.
    Mr. Kanter, while we in Congress have a duty to provide 
your office with the funding and resources you need, can you 
just highlight how your office has been able to continue 
protecting consumers and promoting competition by forming 
strategic partnerships with agencies like the FTC and the FBI?
    Mr. Kanter. Absolutely. So, the whole-of-government 
approach is really important. There are competition statutes 
and rules that Congress enacted that exist throughout the 
government. So, the Packers and Stockyards Act is a great 
example at the U.S. Department of Agriculture. The Department 
of Transportation has competition-oriented statutes that they 
enforce. The FCC has long had concurrent jurisdiction with the 
Department of Justice on certain types of telecommunications 
and media transactions. These are important efforts. 
Competition policy is important to make sure that businesses 
have opportunity and that our economy has the ability to grow.
    Ms. Jayapal. Thank you so much.
    Mr. Chair, I seek unanimous consent to enter into the 
record a letter that Senator Warren and I sent to Google 
calling on it to cease efforts to bully Assistant Attorney 
General Kanter into recusal and just want to be clear that I 
and many of my colleagues staunchly oppose those efforts.
    Mr. Massie. Without objection, so ordered.
    Ms. Jayapal. Thank you. I yield back.
    Mr. Massie. The gentlelady yields back. The gentleman from 
Colorado is now recognized for five minutes.
    Mr. Buck. Thank you, Mr. Chair. Welcome, Assistant Attorney 
General Kanter.
    Mr. Kanter. Thank you.
    Mr. Buck. The United States has a long history of fighting 
against trusts. In fact, there was a debate during the drafting 
of the Constitution about trusts. We even, our country's 
history goes back to fighting against the East India Company. 
Certainly, many Americans have heard about the Tea Party. They 
haven't heard about the antitrust side of the Tea Party. They 
have heard about the taxation side of the Tea Party.
    In 1788, Thomas Jefferson wrote to James Madison,

        It is better to abolish monopolies in all cases than not to do 
        it in any.

To which Madison replied,

        Monopolies are sacrifices of the many to the few, where the 
        power is in the few, it is natural for them to sacrifice the 
        many to their own penalties and corruptions.

    When I was in law school, I took a class on antitrust and 
remembered absolutely nothing from that class. I do remember 
there was a case in that town, a small town, where six gas 
station owners would get together on Monday morning, and they 
would set the price for gasoline at the retail pumps in town. 
They owned almost all the retail pumps.
    You would be surprised to learn that they set the price 
above the price that was prevalent in other areas, and they 
made more profit as a result of that little coffee they had. 
They were prosecuted by the Department of Justice. I said 
prosecuted. They were criminally charged by the Antitrust 
Division. That stopped and prices came down, not a 
revolutionary thought to most of us. The work of the Antitrust 
Division for well over a 100 years has been instrumental in the 
prosperity that we enjoy in this country because of the 
competition that has been spurred by that.
    I want to just go over a couple of cases and just get a 
quick answer before I ask you a more general question. Standard 
Oil case in 1911, did it increase competition and reduce 
prices?
    Mr. Kanter. Yes, sir.
    Mr. Buck. What we refer to, well, the U.S. Steel case, 
1948, increase competition, reduce prices for consumers?
    Mr. Kanter. Yes, sir.
    Mr. Buck. How about the Ma Bell case, 1983?
    Mr. Kanter. That one, too.
    Mr. Buck. One of our favorites because it happened when we 
were all sort of thinking about post-Reagan/Bork antitrust 
enforcement, but the Microsoft case in 2000?
    Mr. Kanter. Yes, antitrust has spurred not just lower 
prices but more innovation.
    Mr. Buck. So, I do remember some things from my 
Constitutional law class. I do remember that in Article I, the 
power is given to Congress to legislate and not to the Article 
III Courts. I have a vague memory, and some people based on my 
vote that I took yesterday are saying that I lost my mind. Am I 
right in that?
    Mr. Kanter. I seem to recall that your articulation of the 
Constitution is correct.
    Mr. Buck. In general principles, in general principles.
    Mr. Kanter. Yes.
    Mr. Buck. So, who developed the consumer welfare standard?
    Mr. Kanter. It was not Congress.
    Mr. Buck. It was the courts.
    Mr. Kanter. Which one? So, if you asked five antitrust 
lawyers what is the consumer welfare standard, you will often 
get six different answers.
    Mr. Buck. OK.
    Mr. Kanter. A standard isn't a standard unless everyone 
agrees as to what it is.
    Mr. Buck. You won't find a single statute where the 
consumer welfare standard is defined.
    Mr. Kanter. That is correct.
    Mr. Buck. We now have a much different economy that we had 
50 years ago, 30 years ago with the advent of e-commerce and 
really online everything. In fact, if you had been here 1\1/2\ 
years ago, this probably would have been online with Members 
participating virtually in this hearing. Based on the drastic 
change in the economy, has Congress kept up with its duty to 
legislate?
    Mr. Kanter. So, I take very seriously, and consistent with 
your words earlier, that it is ultimately up to Congress to 
determine how to legislate and to write the law. As an 
enforcer, it is our job to enforce the law as you write it. So, 
I deeply respect that division. We will make sure that we are 
enforcing the law and using our taxpayer resources to bring 
about the vision that Congress sets forth in its statutes.
    Mr. Buck. My memory from being in DOJ years ago is--are 
there 93 districts, judicial districts in the United States?
    Mr. Kanter. Yes.
    Mr. Buck. Oh, good. I have a good memory. In those 93 
districts, if you went to each of the district courts and asked 
for a ruling on cases, you would get a variety of answers. If 
you come to Congress and ask for an answer on big tech, you 
would get one. What is the need for, and what would you 
prioritize in terms of our job to legislate on big tech?
    Mr. Kanter. So, again, I want to be deeply respectful that 
ultimately it is the prerogative of Congress to write the law, 
and it is our job to enforce that law as you write it. From 
time to time, we provide technical assistance or views with 
respect to pending legislation. We did that in the last 
Congress, including with respect to legislation that you 
sponsored, providing our input.
    As I said before, and as you indicate from your questions, 
it is extremely important that in antitrust law we respect that 
it is the words of Congress that we, Congress writes the law 
and we enforce the law as written by Congress and ultimately 
interpreted by the Supreme Court.
    Mr. Buck. I yield back. Thank you.
    Mr. Massie. The gentleman yields back. The gentleman from 
Georgia, Mr. Johnson, is now recognized for five minutes.
    Mr. Johnson of Georgia. Thank you, Mr. Chair. Assistant 
Attorney General Kanter, thank you for being here and for your 
testimony and for your work on behalf of the American people.
    Mr. Kanter. Thank you.
    Mr. Johnson of Georgia. You have heard the term used 
``defund the police,'' correct?
    Mr. Kanter. I have heard that, yes.
    Mr. Johnson of Georgia. You have also heard my friends on 
the other side of the aisle talk about defunding the DOJ, 
haven't you?
    Mr. Kanter. I have heard that from time to time.
    Mr. Johnson of Georgia. Recently, you testified that the 
Antitrust Division has almost 400 fewer employees than it did 
in 1979 despite its mandate, which is to police an economy 
where the rich and the powerful have become more rich and 
powerful, and where workers have been low-balled and consumers 
have been paying higher prices. The work of the Antitrust 
Department is vital to ensuring that our economy thrives, that 
our consumers can afford to purchase goods, and that our 
workers are paid fair wages for the work that they do.
    Mr. Kanter, you have spoken about how the DOJ lacks the 
resources to enforce our Nation's antitrust laws as robustly as 
possible. How can the DOJ's capacity for antitrust enforcement 
capacity be strengthened?
    Mr. Kanter. So, thank you for the question. You are right. 
Even sitting here today we have significantly fewer resources 
and personnel than we did in 1979.
    These are complex cases. They involve a lot of data. They 
involve a lot of technology and a lot of resources. It is 
imperative that we have the people necessary given the scope of 
the concerns. We deal with issues from agriculture to 
healthcare to pharmaceuticals to energy to technology. To 
enforce the law as Congress wrote it, we need sufficient 
resources to make sure that we are fighting to protect the 
American public. We will put those resources to good use as 
Congress determines and sees fit.
    Mr. Johnson of Georgia. Last year under Democrat control of 
the House, we passed the bipartisan Merger Filing Fee 
Modernization Act, which was signed into law. How does that 
bill help the DOJ improve antitrust enforcement?
    Mr. Kanter. So, the Department of Justice came out in 
strong support of that legislation. We are extremely grateful 
to the Congress and for the overwhelming bipartisan support for 
that legislation. It ensures that the merger filing fees are 
updated for the first time in roughly 20 years and that those 
fees can help fund, are available to help fund the Antitrust 
Division and so that we can protect the American economy.
    I should note that it also continues a longstanding 
tradition, which is that we are a significantly fee-funded 
component, which means our burden on the general fund, our 
burden on taxpayers is quite minimal.
    Mr. Johnson of Georgia. Thank you. Despite incessant 
attempts to defund your operation, you have robustly enforced 
our Nation's antitrust laws from opening investigations into 
Ticketmaster's anticompetitive conduct and pursuing litigation 
against Google's monopoly in online search and online 
advertising. Why does the DOJ need help from Congress for it to 
be able to robustly enforce the Nation's antitrust laws?
    Mr. Kanter. Ultimately, it is, as I said before, ``it is 
the prerogative of Congress to write the law.'' If Congress 
sees fit, based on the challenges in our economy and the 
expansive corporate concentration to update or clarify the laws 
to provide more authorities, then that is the role of Congress. 
In some instances, the DOJ has provided technical assistance or 
specific support.
    At the end of the day, again, that is, it is all about the 
rule of law. We need to make sure that we are enforcing the law 
effectively. When and until that time, we will make sure that 
we use the resources that we have to enforce the law to the 
greatest extent possible to help as many people as possible 
during our time.
    Mr. Johnson of Georgia. Thank you. During the coronavirus 
pandemic, it was essential workers who stepped up to the plate 
and continued to help their fellow Americans, despite their 
risk of exposure. Despite their heroic work, companies that 
employed these essential workers also worked to suppress their 
wages and restrict their job opportunities. In light of these 
illegal actions, the DOJ enforced the law and won indictments 
against these lawbreakers, including four managers of a home 
healthcare agency or home healthcare agencies in Maine. Why is 
it important that DOJ act on behalf of workers like these 
healthcare practitioners?
    Mr. Kanter. These people are the beating heart of our 
economy. They put themselves in harm's way as healthcare 
workers. People work hard and they should have the benefits of 
competition.
    If you indulge me, I think about an email that I saw in one 
of our investigations. This was a woman who was an in-school 
nurse for children with special needs who couldn't afford her 
own health insurance. She couldn't afford her own healthcare 
and tried to get a better job and couldn't because of an 
anticompetitive agreement that prohibited her from going to 
another employer.
    These are real effects for real people. We have an 
obligation to fight for them, to make sure that they are able 
to have the pathway to upper mobility, and to earn a decent 
living based on their hard work.
    Mr. Johnson of Georgia. Well, thank you for your efforts.
    I yield back.
    Mr. Kanter. Thank you.
    Mr. Massie. The gentleman yields back. The gentleman from 
Florida, Mr. Gaetz, is now recognized for five minutes.
    Mr. Gaetz. Mr. Assistant Attorney General, I think you are 
doing a good job. That is a painful admission for me to make 
about anyone who works at the Department of Justice, an entity 
that I believe has been victimized by political capture.
    I am perhaps just as concerned about the monopoly power of 
Google. Please talk to us about the enforcement actions that 
you have led against Google.
    Mr. Kanter. Thank you for your question. We have, and it is 
a matter of public record, two open enforcement matters against 
that defendant. I can't speak specifically about those matters 
because they are pending in court, including one right down the 
street as we speak.
    Mr. Gaetz. Well, we heard the Chair of the Committee 
critique your work and say that the real problem is you keep 
losing, that you guys are losers, you are not getting 
victories. Tou are, just not speaking about the merits but the 
procedural posture regarding one of your cases against Google, 
you are in trial right now against Google, right?
    Mr. Kanter. Correct. Yes, we have two cases, one of which 
succeeded on a summary judgment, the other that survived a 
motion to dismiss.
    Mr. Gaetz. While I am a few years away from my time as a 
practicing lawyer, usually when you are at trial that means you 
prevailed on summary judgment, right?
    Mr. Kanter. Correct.
    Mr. Gaetz. It usually also means you prevailed on motions 
to dismiss, right?
    Mr. Kanter. Correct.
    Mr. Gaetz. Sometimes you got to prevail on multiple motions 
to dismiss, don't you?
    Mr. Kanter. From time to time.
    Mr. Gaetz. In the other matter where you are not at trial 
against Google, but you are making really important allegations 
about how Google has vertically integrated advertising 
brokerage and advertising monetization, in that matter you have 
prevailed on the motion to dismiss, right?
    Mr. Kanter. As a matter of public record, that matter 
prevailed on the motion to dismiss.
    Mr. Gaetz. So, are you tired of winning?
    Mr. Kanter. Well, I can give you a whole other list of our 
victories, including those in court against mergers. We have 
had--
    Mr. Gaetz. Well, I want to stay on big tech because it is 
really concerning to my constituents. Why should our fellow 
Americans be concerned about any entity that has the ability to 
vertically integrate search and ad brokering?
    Mr. Kanter. So, I think it is important to go back to the 
foundation and the formation of the antitrust laws. In 
preparation for this hearing, I went back and looked at the 
namesake of the Sherman Act, John Sherman. He said at the time 
that the law was passed,

        If we will not endure a king as a political power, we should 
        not endure a king over the production, transportation, and sale 
        of any of the necessities of life.

    Ultimately, monopolies threaten our liberty. If companies 
engage in anticompetitive conduct, exclusionary conduct, or 
break the law to sustain their monopoly power, it threatens our 
liberty and threatens our democracy and goes to the heart of 
our freedom. So, we have an obligation to enforce the law.
    Mr. Gaetz. I would double-tap the importance of that in the 
information space. I am proud of the work that you have done 
for food processors and to stop consolidation in our food 
supply. I am very worried about that. I think that the work 
that you are doing on the supply chain as well is really 
critical to drive down inflation and help our fellow Americans.
    In the information space, if you get these powerful 
monopolies that get to define the nature of truth itself, it 
really is a threat to the republic, isn't it?
    Mr. Kanter. This is the marketplace of ideas. The free flow 
of information is critical to a free and open society. It is 
right there in the Constitution in the First Amendment. When 
companies control the information highways, they control access 
to information, it threatens the marketplace of ideas.
    Mr. Gaetz. I want to encourage you to continue to pursue 
those cases, because a dynamic that I have observed at DOJ, and 
it is not a criticism of you but of others, is that what they 
want to do is go create these enforcement actions that are just 
enough virus for those people to then go and sell the antidote 
when they leave DOJ and go work for some big, high-priced law 
firm. So, they create a little virus, then they go sell the 
antidote. I don't think that is what you are doing.
    Sometimes that means you have to take some intermittent 
losses along the way. When going up against the toughest and 
the worst companies, it seems as though you have got the human 
resources and the financial resources to pursue that. Am I 
correct?
    Mr. Kanter. I have a job to do. We are going to enforce the 
law without fear or favor. Sometimes when you go up against the 
biggest companies in the world, it results in attempts to 
intimidate you not to do your job. We are not going to be 
subjected to that intimidation.
    Mr. Gaetz. Well, I think you are doing your job. Frankly, I 
think we would do our job if we continued to advance the 
legislation that Congresswoman Jayapal and Congressman Buck and 
I worked on to reshape some of these companies by force of 
legislative power.
    There is a competing doctrine here. There are some who just 
say strip some of these monopolies of their defenses and send 
you all and other lawyers off to feed on them. In a way, that 
is an abdication of our Article I authority to be able to 
reshape these entities that are impairing the marketplace of 
ideas. So, I really hope we will get back to that Jayapal 
legislation and to write that in tandem with the good work you 
are doing.
    I yield back.
    Mr. Kanter. The rule of law starts with the laws written by 
Congress.
    Mr. Gaetz. Thank you.
    Mr. Massie. The gentleman yields back.
    I now recognize Ms. Scanlon from Pennsylvania for five 
minutes.
    Ms. Scanlon. Thank you. Thank you, Assistant Attorney 
General Kanter, for joining us today in an era of increasing 
concentration and anticompetitive behavior. I really want to 
commend you in the Antitrust Division for your efforts to 
strongly enforce our existing antitrust laws against monopolies 
in a whole range of industries, as you have suggested.
    We have heard some mention of Google's anticompetitive 
practices. You mentioned there is a couple cases right now. As 
you and your staff are aware, during the last Congress, this 
Subcommittee under the leadership of the former Chair from 
Rhode Island and our colleague, Mr. Buck, from Colorado 
undertook an extensive and largely bipartisan examination of 
the anticompetitive practices of the largest tech companies, 
including Google.
    I know your current cases, one is regarding Google's 
dominant position in online search and the other on Google's 
control over online advertising, as we have suggested, have the 
potential to promote competition and fairness in an industry 
that has been dominated by a handful of large companies.
    I found it particularly interesting that the Department of 
Justice's online search case has revealed some shocking 
practices, including that Google paid $26 billion two years ago 
to make its search feature the default on iPhones and most 
internet browsers. I think that is important information for 
the public to know. As we talk about the importance of fighting 
anticompetitive behavior, it defies logic to see how an 
industry can be deemed competitive if one company can afford to 
pay its competitors not to compete.
    As you engage in these prosecutions, I see some takeaways. 
While I understand in certain cases settlement might be an 
appropriate choice, I do think the sunlight that is provided by 
a public prosecution is important. A second takeaway would be 
that the discovery and public disclosure of evidence is 
necessary, as I said, to help the public understand what these 
companies are doing and how it impacts on our consumers and 
small businesses.
    If there is trouble moving to a successful conclusion of 
those cases, I suspect it will be not because Google's action 
were not anticompetitive, but that we may need to update some 
of our hundred-year-old statutes that are in your legal toolkit 
to go after monopolies. I would appreciate any suggestions you 
have on how we might do that, understanding that you might not 
be able to refer to the cases currently under prosecution.
    Mr. Kanter. Thank you for the question. As I indicated 
before; I can't comment on active litigation matters. I very 
much appreciate your recognition of the hard work of my 
colleagues, some of whom are with me today and many of whom are 
in court today and back at the Department of Justice, who work 
tirelessly at great personal expenses to fight for the American 
public. I am so proud to call them colleagues.
    With respect to the role of Congress, as I mentioned 
before, the rule of law starts with the writing of the law. 
Ultimately, that is the prerogative and the role of Congress. 
As a law enforcement authority, we have to enforce the law 
using the tools that you give us.
    In the last Congress, there was a robust discussion in this 
Committee about changes to the law. We have provided input 
based on our technical understanding of those proposals and our 
views and would be happy to re-share that with the Committee 
and working through our Office of Legislative Affairs provide 
input as appropriate.
    Ms. Scanlon. Yes, some of those bills, the American 
Innovation and Choice Online Act and the ACCESS Act were 
designed to improve antitrust enforcement and promote 
competition. So, we are very interested in your views and your 
colleagues' views on how those would help us move forward.
    I see my time is almost up. I think we are going to submit 
some additional questions. I have been talking with some of our 
colleagues overseas, in the EU, in Ireland, about some of the 
measures they have been able to move forward with. They are far 
ahead of us. Obviously, we need to either catch up or buy in. 
So, I would be interested in submitting some additional 
questions on those issues.
    Mr. Kanter. Thank you. I very much look forward to 
answering your questions.
    Ms. Scanlon. OK. Thank you. I yield back.
    Mr. Massie. The gentlelady yields back.
    The gentlelady from Indiana, Ms. Spartz, is recognized for 
five minutes.
    Ms. Spartz. Thank you, Mr. Chair.
    Thank you, Mr. Kanter, for being here today. We talk a lot 
about monopoly/oligopoly problems, and we talk about individual 
liberties, but we do have a serious problem in every sector of 
the market with oligopoly/monopoly problems, whether it is 
healthcare, whether it is agriculture, whether big tech. They 
are all things that you have taken, tough cases, and I actually 
appreciate that you are willing to take tough cases.
    I actually had some agreements even on bipartisan to adjust 
our legal framework. We cannot just allow companies to have 
unlimited immunities. We cannot allow companies not to have 
proper accountability and protection of property rights, 
including data protection, because that has become a new type 
of property. We didn't define them.
    We do have challenges with consumer welfare standard, which 
may need to be defined a little bit more broadly and everything 
else, but don't you believe--we passed a lot of different laws, 
but in reality you are treating the symptoms, but it seems like 
a lot of your cases you get dismissed or have weak evidence. 
You are really treating the symptoms. Unless we start looking 
at the causes--we passed Dodd-Frank for too big to fail. Our 
institutions became even bigger.
    So, don't we need to start looking at barriers of entry and 
barriers to market competition of entry?
    Mr. Kanter. So, absolutely. When we deal with 
monopolization concerns, we need to make sure that we're 
focused on core monopolies, core considerations, or conditions 
that if they violate the law sustain monopoly or oligopoly 
positions. So, we've undertaken that effort in our 
investigations and our--
    Ms. Spartz. You can do only symptoms. The barriers of entry 
that we create in a lot of ways, either through USDA 
regulation, or through bills, you cannot deal with that. Is 
that correct?
    Mr. Kanter. Well, we are a law enforcement--
    Ms. Spartz. You cannot come after USDA, right? We are the 
only people who can, right, enforce if our agency creates a 
barrier of entry. Is that correct?
    Mr. Kanter. So, again, we are focused--I have a very--our 
job is to enforce the antitrust laws as written by Congress.
    Ms. Spartz. Right. So, I think the challenge is you will 
not be able to deal with this. It has become very ineffective. 
We have oligopoly problems in every sector of the market. Is 
that correct?
    Mr. Kanter. Well, I think we have--
    Ms. Spartz. In most.
    Mr. Kanter. In many markets there are monopolies and 
oligopolies. I do believe that antitrust enforcement can be an 
effective tool and, when the facts of the law support it, to 
help promote competition. You can't have a functioning 
marketplace without market participants.
    Ms. Spartz. Right. So, generally, barriers of entry, if we 
don't have new entries too, that causes significant problems. 
Is that correct?
    Mr. Kanter. There can be many causes for barriers of entry, 
yes.
    Ms. Spartz. Right. So, and a lot of them are legislative?
    Mr. Kanter. I will defer to Congress regarding legislation. 
Again, I'm focused on anticompetitive conduct that violates the 
law.
    Ms. Spartz. So, what are your thoughts about the consumer 
welfare standard? What are your thoughts about that?
    Mr. Kanter. So, as I indicated before, I think if you ask 
five antitrust lawyers, ``What does the consumer welfare 
standard mean?'' you often get six different answers. It's 
difficult to have a standard if there's no broad-based 
agreement as to what it means. The welfare of consumers is an 
important objective. It's an essential objective for the 
antitrust laws, but so is the welfare of workers, so is the 
welfare of--
    Ms. Spartz. It is probably--in some cases it is more than 
just price, correct?
    Mr. Kanter. It's absolutely more than price.
    Ms. Spartz. Right. It is very difficult to argue in any 
other cases if it is not a price. It has become much more 
difficult, because precedent has been just the price issues, 
correct?
    Mr. Kanter. Well, I think we have an obligation to make 
sure that we are bringing cases to courts that present issues 
in the way they appear in the marketplace. Sometimes that will 
be in the form of higher prices, but sometimes that might be in 
the form of less innovation or harm to, for example, the 
marketplace of ideas.
    Ms. Spartz. Yes, access. One more question: So, we had a 
kind of discussion, and it is a very convoluted process. Your 
relationship is FTC and DOJ. If you would literally look to 
restructure that process, because it is very strange how it is 
set up, how would you do that to make it more efficient 
antitrust enforcement?
    Mr. Kanter. If you beg my indulgence, I think my kids would 
answer that by saying new phone, who dis? So, I think 
ultimately that it's up to Congress to create institutions and 
determine how those institutions--and what their authorities 
are. Ultimately, at the end of the day I've got a job which is 
to be an antitrust enforcer at the Department of Justice, and I 
will focus on doing that job to the best of my ability and with 
the trust of the public.
    Ms. Spartz. So, do you believe you efficiently set up your 
agency as you are in charge of your division? Is your division 
set up as efficient as it can be or are there some improvements 
in your division that we should address for your division 
specifically?
    Mr. Kanter. Yes, there are always improvements.
    Ms. Spartz. Can you state some?
    Mr. Kanter. Yes, for example, we've looked to make our 
information more accessible to the public, to change the 
language of antitrust. We've opened investigations that focus 
on labor effects. We have created organizational streamlining 
to make sure that processes are more efficient, and decisions 
can be made more expeditiously but with the same level of 
protection and oversight. We are constantly making sure that we 
are evaluating how we run our division so that we can deliver 
the best results for the public as efficiently and as 
inexpensively as possible.
    Ms. Spartz. Thank you. My time expired. Yield back.
    Mr. Massie. The gentlelady yields back.
    I am glad to see my good friend Mr. Neguse is also skipping 
the other hearing we are supposed to be in our Rules Committee, 
and I appreciate him coming to attend this. I recognize Mr. 
Neguse from Colorado for five minutes.
    Mr. Neguse. Well, I certainly thank the Chair. I wouldn't 
miss a hearing being held by Chair Massie. So glad to be here. 
Grateful to him and Ranking Member Correa for hosting this 
hearing.
    Of course, welcome back to the Assistant Attorney General. 
We are grateful to you for your hard work at the Department of 
Justice and for the work for all the folks within your agency 
that they are doing each and every day to protect the public 
and to protect consumers. I really think that the work you have 
done and, of course, in partnership with the Chair of the 
Federal Trade Commission.
    Chair Kahn has been incredibly important and meaningful in 
terms of putting consumers first, fighting against monopolistic 
power. As we have heard during the course of this particular 
hearing, and I suspect you have heard elsewhere, that kind of 
work obviously offends the concentration of power in different 
places, and the blowback that ensues is not all too surprising. 
Nonetheless, we are grateful for your diligence in returning 
the antitrust division's work as mandated by Congress under the 
Sherman Act and the Clayton Act efforts that in my view were 
long overdue.
    I want to talk a bit about the merger filing fee bill, 
which as you know we passed last year. The Congress had enacted 
it; the President signed it into law; on a bipartisan basis 
passed overwhelming in both chambers. It was an effort that I 
was proud to lead alongside my Republican colleague from 
Colorado on a bipartisan basis, Congressman Buck, which 
essentially would ensure that the DOJ and the FTC had the 
resources that they so desperately needed from an antitrust 
enforcement perspective.
    You noted, I believe this was last year, in your testimony 
to the U.S. Senate, that your division is operating with 400 
fewer employees than it did in 1979. That was at least at that 
time that you were testifying, and I suspect it hasn't changed 
materially. Of course, that was before I was born. So, you 
think about all that has changed over the course of the last 
half a century--less than half a century, four years, and yet 
you are operating with less people than your predecessors did.
    The merger filing fee guidelines were intended to help 
change that, the Modernization Act, I should say. 
Unfortunately, it appears that the budget that Republicans have 
proposed for the next Fiscal Year contravenes that 
Congressional intent that we had all arrived at in terms of a 
consensus less than a year ago, because the budget that my 
colleagues on the other side of the aisle have submitted would 
only further cut your already insufficient funding levels and 
prevent you from carrying out the work that is so needed to 
protect American consumers and small businesses. I think it 
will have a lasting impact.
    I am curious if you might want to expound a bit on if the 
current proposed levels in the appropriation bill that we are 
taking up today in the Rules Committee, as Chair Massie 
mentioned--if those levels were to be enacted into law, how 
would that impact, or in my view impede the work of your 
agency?
    Mr. Kanter. Thank you, Congressman, and thank you for your 
work and your leadership on the legislation from last term. 
Indeed, it provides much needed available funds for the 
Antitrust Division so that we can enforce the law, which as you 
indicate covers the entire economy. The work that we do lowers 
prices for consumers. It saves taxpayers millions on millions 
of dollars in collusion and procurement fraud. It opens 
opportunities for new businesses to start and thrive.
    The return on investment from antitrust enforcement is a 
multiple that would be the envy of Wall Street. So, we are 
working to make sure that we can take the scare resources that 
we do have and invest it efficiently and effectively for the 
betterment of the public. I'm proud of what we've been able to 
do with the little that we have, but as you indicated we are 
still substantially smaller today than we were in 1979. With 
greater resources we can do more to protect the public and save 
taxpayers money.
    Mr. Neguse. I couldn't agree with you more. I think it is a 
no-brainer. The ways in which the American people will benefit 
from the work that you are doing--I mean those benefits accrue 
directly to the American consumer in a number of different 
industries and segments of our economy, as the gentlewoman from 
Indiana I think correctly articulated, and the nature of the 
concentration of market power in a variety of industries that 
impact the everyday life of countless Americans.
    So, I am grateful for the work you do, and would I guess 
ask that you extend the gratitude I suspect of most Members of 
this body to your team and the front-line attorneys in the DOJ 
that are doing that hard work. I yield back the balance of my 
time.
    Mr. Kanter. Thank you for that. They inspire me to get out 
of bed every morning and they are an incredibly talented and 
dedicated group of people who have delivered meaningful results 
to the public.
    Mr. Massie. The gentleman yields back.
    The gentleman from Wisconsin, Mr. Fitzgerald, is recognized 
for five minutes.
    Mr. Fitzgerald. Thank you, Mr. Chair.
    Thank you, Mr. Kanter, for being here. I don't want to rain 
on everybody's parade here, but the first thing I wanted to do 
was ask unanimous consent to submit for the record that was 
received by the Full Committee Chair, Chair Jordan, as well as 
the Ranking Member, Mr. Nadler.
    Mr. Massie. Without objection, so ordered.
    Mr. Fitzgerald. Thank you. This letter opposes the FTC and 
DOJ's proposed changes to Hart-Scott, the premerger 
notification form. It has got about 30-some associations and 
trade groups that have signed off on it. So, once again, Chair, 
thank you for allowing me to enter that into the record.
    Mr. Kanter, in June of this year you announced that your 
division is changing its review of bank mergers to look beyond 
the traditional metrics used in bank merger review. Certainly, 
a lot has happened in that industry since 1995--however, it 
appears that bank concentration levels have remained really 
unchanged in local markets across the country for the last 25-
plus years.
    As I am sure you are aware, Congress has tasked the Federal 
financial regulators, not really DOJ, with assessing matters on 
financial stability and systemic risk. Making matters worse, I 
think the administration has been inconsistent on this issue. I 
am concerned that any change in the current analysis that would 
depart from long-existing and accepted standards may not 
reflect actual changes in the competitive environment.
    So, let me ask you: Have you been in your assessment of 
this accounting for increased regulatory burdens that drive 
consolidation and result in strong banks acquiring struggling 
ones in your revised bank merger guidance?
    Mr. Kanter. So, the process for revising bank merger 
guidelines is still very much underway. The purposes of the 
remarks that you referred to is to say that if we're going to 
enforce the antitrust laws and provide assessment of 
competitive impact, it's important that we do so against the 
backdrop of today's market realities.
    So, in 1995 people would line up at their bank on Friday to 
take cash from their teller. They'd sign up for banks and get a 
free toaster. The role of local and community banks were 
different than they are today, and certainly FinTech was not 
even a term that people used.
    So, what we're seeing is that if we're going to go about 
conducting an analysis, it's really important that we conduct 
it against the backdrop of how the markets work today. They've 
changed. So, I think it's an effort to bring it up-to-date 
first and foremost.
    Mr. Fitzgerald. So, the President's Executive Order on 
competition, it called on the AG in consultation with the Fed, 
FDIC, and the Comptroller of the Currency to come up with a 
plan regarding bank mergers by January 5, 2022. Can you 
describe that process and was there a cohesive plan?
    Mr. Kanter. Yes. So, that--
    Mr. Fitzgerald. How was that tackled, I guess is what my 
question is.
    Mr. Kanter. Yes. That process is still underway, and we're 
doing so in coordination with the bank regulators. As you may 
be aware, we are working on it. Some of the other Members of 
this Committee have asked about our draft merger guidelines. We 
are in the process of ingesting a large number of public 
comments with respect to those merger guidelines, which will 
also have significant instructive value with respect to the 
bank merger guidelines. So, we look forward to taking all that 
input and working closely with our colleagues across the 
government to come up with sensible bank merger guidelines that 
are reflective of today's market reality.
    Mr. Fitzgerald. I happen to be in a unique position of 
being--I am the only Member of Congress right now that is on 
Financial Services as well as Judiciary, so there is a lot of 
discussion in both Committees about this. If the agencies adopt 
a draft, they will reduce the value of those guidelines to 
little more than just a policy statement. Do you feel like we 
are in a position where you are going to be able to be more 
public on these issues?
    Mr. Kanter. Yes, certainly with respect to the--let me 
respond first with respect to the general merger guidelines 
which are in draft form. We wrote them as a--first and foremost 
for the rule of law. These are the first guidelines ever to 
cite Supreme Court cases because ultimately, we are a law 
enforcement agency. If we have to adhere to the rule of law, 
and how we enforce the mergers and merger law.
    So, we have written these to be durable and tractable, but 
I should note that we've also submitted them for public comment 
and we've received tens of thousands of comments from 
individuals, businesses, farmers, and overwhelmingly supporting 
our draft merger guidelines. We are in the process of reviewing 
every single one of those comments and then making updates to 
the draft. It's an important process that we can learn before 
we finalize the existing merger guidelines.
    Mr. Fitzgerald. Thank you, Chair. I yield back.
    Mr. Massie. The gentleman yields back.
    I now recognize the gentleman from Maryland, Mr. Ivey, for 
five minutes.
    Mr. Ivey. Thank you, Mr. Chair.
    Mr. Assistant Attorney General, I appreciate you being 
here. Appreciate the great work you have been doing. It is a 
great opportunity to have a chance to ask a few questions of 
you today, but I want to start with a comment.
    There have been a couple of my colleagues who have talked 
about the Google case. I join those views. I think it is a 
tough--those are tough cases. I know a lot of times when people 
come and testify before the Judiciary Committee you hear--wins 
and losses end up being sort of how people get measured. This 
one where I thought it was important to take it on. You might 
lose it. I mean it is a very tough case. I don't want to put 
bad mojo on you. You might win it as well, and I think that 
would be a good thing for the American people. I know you can't 
comment on it anyway because it is live litigation.
    I did want to ask you about artificial intelligence and 
what your shop is doing on that front. We have heard testimony 
about the need to hire additional staff overall. Carter era 
numbers--Mr. Neguse hadn't been born yet in 1979. Those were 
good days for me; I remember 1979 fondly, but--
    [Laughter.]
    Mr. Ivey. I did want to ask you about that because in your 
testimony you mentioned that you are hiring more scientists. It 
seems to me that AI is something that is really moving very 
rapidly and evolving very rapidly, and I am always concerned 
that the government isn't able to keep up with that. I want to 
get your sense of what you are doing to try and address that.
    Mr. Kanter. Yes, thank you. So, first and foremost, it's 
important that we understand how the stuff works. So, AI is a 
term that is used to describe lots of different things; machine 
learning and computer science, and in a wide range of areas. At 
the end of the day any time you have a significant 
technological transformation it creates both opportunities and 
risk. So, from an antitrust perspective we are focused on 
making sure that we are preserving the many wonderful 
opportunities that can flow from new innovations and new 
technologies, so that the marketplace has the opportunity to 
spread the benefits around to the public broadly.
    With respect to AI and data-driven technology sometimes the 
aggregations of data, large data at scale could lead markets to 
tip or become a barrier to entry. So, it's really important 
that we understand those market realities so that we can apply 
the law effectively.
    Mr. Ivey. I did want to ask you about this, too. I am not 
technological--Mr. Massie is an MIT graduate. I had to go to 
law school instead. I did want to ask you about the potential 
of the collusion issue. I guess traditionally in antitrust law 
you talk about collusion. We are really thinking about humans 
communicating with each other about the--Mr. Buck had the six 
people having coffee together.
    With the AI possibly there where there is information 
sharing going on that might or might not involve conduct that 
seems like that might be an area that is going to potentially 
create antitrust issues where you don't have the traditional 
human communications that you have looked at before.
    Let me move onto another thing really quick. I think 
noncompete clauses--have you discussed that already?
    Mr. Kanter. Yes, we have.
    Mr. Ivey. How broad is that? That is a big deal for a lot 
of people who are industries. Lawyers make sure we don't have 
noncompete clauses and you can go from one law firm to another 
overnight. For many industries that is not the case. What are 
you doing about that?
    Mr. Kanter. So, we have a very active program both on the 
criminal and civil dockets to ensure that we protect workers 
from noncompete clauses.
    I'll give you an example that's near and dear to my heart: 
We weighed in on an Appellate Court proceeding in a matter 
involving a woman who was a fast food worker and had the 
opportunity to become a manager at another fast food 
establishment, but was denied that opportunity because of an 
agreement like the one that you're describing. In a world 
where, and in an economy where, in the country where upward 
mobility is the opportunity to succeed on the basis of your 
hard work and the merits of your hard-earned efforts the 
ability to switch jobs and to do so free from anticompetitive 
restraints is foundational to our freedom.
    Mr. Ivey. Agree. I got to reclaim my time quickly.
    Last question: Mr. Correa asked you about the airline 
merger issue, and I guess the question I would raise there--
because I think the point he was making was that the 
department's actions might have been aimed at making sure that 
there wasn't an impact on reducing competition. These were two 
businesses that I guess are struggling economically. To what 
extent does the department take into consideration that this 
merger might be necessary for these two businesses, or 
generally speaking to remain economically viable?
    Mr. Kanter. I appreciate that. I can't comment on active 
litigation or pending matters. We take in all considerations. 
We want to make sure we understand market realities.
    The issue that you're talking about--there is, actually, a 
legal doctrine called the failing firm defense. So, there are 
legal requirements that have be met before that defense can be 
applied. Ultimately, we want to make sure that companies 
compete, to offer the best opportunity and options to the 
public, but each case presents its own issues and there is a 
very long and substantial body of law on how to deal with some 
of the questions you're presenting.
    Mr. Ivey. Thank you. I appreciate your testimony and I 
yield back.
    Mr. Massie. The gentleman yields back.
    Thank you for pointing out I don't have a law degree. I 
think that is--
    Mr. Ivey. Stop bragging now.
    [Laughter.]
    Mr. Massie. I have served on the Science Committee. I have 
seen what passes for credentials up here. They have given me a 
hard time for not having a law degree occasionally.
    Thank you for showing up today, Assistant Attorney General 
Kanter. My constituents; I have had lots of interactions over 
11 years, nobody has told me that they are worried about Google 
taking over their lives and asking me to come in here to 
Congress and do something about Google. None of my 750,000 
constituents. They do have concerns--and by the way, I have got 
some search engines on my phone and they don't include Google. 
There are options out there.
    There are things that my constituents do care about where 
you may be able to improve their lives or improve competition. 
One is airlines at the Cincinnati Airport, which is in 
Kentucky, my district. Another is the farmers worried about 
this oligopoly that exists in the meat market. In fact, 
President Biden addressed it in his State of the Union, at 
least acknowledged the problem that four meat companies control 
85 percent of the meat that is consumed in the United States. I 
have also got grocers who are concerned about their ability to 
compete. So, I want to cover some of those things.
    Congress vested the authority to review airline mergers 
with you, the DOJ, and for decades the DOT, Department of 
Transportation, has deferred to you on the competitive 
analysis, or your department. I don't want to imply you have 
been there for decades. Recently, we heard the Secretary of 
Transportation referring to a lawsuit that you are bringing 
against--in the context of the merger of two airlines: JetBlue 
and Spirit.
    In a statement of support of that lawsuit the Secretary of 
Transportation said they have not, generally, gotten involved 
with these merger cases, but that is changing today. So, the 
DOT has expressed that they are now going to countermand 
decades of policy, policy that Obama supported, and that they 
are going to basically put all these mergers in double 
jeopardy.
    This begs the question: Are you able to effectively analyze 
the competitiveness of these, and the effect of competitiveness 
at the DOJ, or do you need the Department of Transportation 
second-guessing your analyses in cases?
    Mr. Kanter. So, when we approach these issues, we approach 
it as a matter of law enforcement. So, in the context of a 
merger we enforce, for example, Section 7 of the Clayton Act. 
So, our analysis is limited to the four corners of that 
statute, which was written by Congress.
    There are numerous industries, including 
telecommunications, agriculture, and others, where there are 
other statutes that have other considerations and where law 
enforcement authority is provided to other agencies. They can 
go based on the four corners of the--
    Mr. Massie. In the domain of competitiveness do you have 
the subject matter expertise? I actually serve on the 
Transportation Committee and had the Secretary of 
Transportation there and asked him what his criteria for 
analyzing these things would be. I asked him three times three 
different ways and he had no answer.
    Mr. Kanter. Yes.
    Mr. Massie. I think this expertise resides in your 
department, not theirs. Do you agree that they shouldn't be 
reevaluating what you have already done?
    Mr. Kanter. I don't want to speak for the Department of 
Transportation. I can say that again when we look at a matter, 
we're looking at what statutes do we enforce? So, the Clayton 
Act is the statute that we are empowered to enforce at the 
Antitrust Division. So, our analysis is undertaken not only 
pursuant to the text of the Clayton Act, but the legal 
precedents that interpret the Clayton Act. So, our analysis is 
strictly within the four corners of that statute.
    Mr. Massie. My constituents benefit from low-cost carriers 
at the CVG Airport. I want to make sure they are viable, and 
sometimes they require a merger to remain viable. They don't 
control an inordinate amount of the market share. So, that is a 
concern that I have.
    Can you tell us what you have done for farmers at the DOJ?
    Mr. Kanter. I think we have been more active with respect 
to protecting farmers and family farmers than we have been in 
over a century. We have brought criminal and civil cases to 
protect the ability of family farmers to get a better return, a 
fair return on their crop and on their livestock. We are 
protecting the ability of farmers to exist in small and rural 
communities that have the infrastructure, whether it's a local 
hospital or a local bank or a local grocery store. These are 
the--it's the bleeding heart of our Nation.
    Interestingly, when the antitrust laws were enacted by 
Congress there was a vibrant discussion of farmers. I had the 
privilege of sitting with family farmers just a few weeks ago 
learning more about their businesses and the struggles that 
they have and whether it's how much they have to pay for 
inputs, whether it's the ability or inability to repair their 
tracks, or the difficulty negotiating for a fair return on 
their cattle. These are all real issues that they are 
confronting on a regular basis.
    At the Antitrust Division we have brought a significant 
number of matters. We have a matter that we filed just a couple 
of weeks ago relating to meat packers and pricing. We had a 
matter just last week, a consent decree that will protect the 
ability of farmers to switch meat processors without incurring 
substantial penalties for taking advantage of competition. We 
entered into another matter--we brought another matter focusing 
on protecting poultry farmers from the tournament system. 
There's a whole long list of actions that we've undertaken 
because these issues matter.
    Mr. Massie. I appreciate your efforts. I think you are 
fighting in some ways a losing battle until we address what 
Mrs. Spartz said, which is ``we erect barriers to entry here in 
Congress.'' The USDA has barriers to entry. There is the same 
amount of regulation at a mom-and-pop processor with four 
people working there as there is at an Oscar Meyer Wiener 
factory.
    We need not scale prejudicial regulations, but scale 
appropriate regulations so that these farmers--you can help 
them on the back end try to fight the oligopoly of four 
processors; and I appreciate you doing that, but we need to 
figure out how we can have little processors as well to help 
the little farmers.
    With that my time has expired. I really--oh, I see Ms. 
McBath is here and I recognize her for five minutes.
    Ms. McBath. Thank you so much. I just kind of popped in on 
you, didn't I?
    Mr. Massie. Yes.
    Ms. McBath. Thank you so much.
    Mr. Massie. Appreciate you coming though.
    Ms. McBath. Thank you.
    AAG Kanter, thank you so much for appearing before us 
today. I am so sorry; I have been running in between Committee 
hearings today and just--but thank you for all your work to 
keep our industries competitive and fair.
    America has prospered because of competition and whether 
they aspire to grow into a large company or to remain in their 
communities, small to medium-sized businesses have benefited 
from the Antitrust Division's hard work and President Biden 
economic plan.
    As I mentioned at the FTC Oversight hearing with Chair 
Khan, we absolutely must uphold and enforce antitrust laws to 
promote competition across our industries. That means doing our 
homework. Following the cases regarding these massive mergers 
and listening to those most impacted by these dealings and the 
work the division does is how we protect American dollars.
    AAG Kanter, I want to take a moment to applaud the 
division's efforts in identifying and challenging 
anticompetitive deals and collusion. Your work helps to protect 
our markets and ensure that they remain fair and competitive. I 
understand that the Antitrust Division needs more staff to 
continue this fight and the good fight to protect our markets 
and to protect our consumers and our workers.
    As Congress looks for ways; and we always need to be 
looking for ways, to fund the budget, I hope my colleagues 
become better aware of your critical work and take the step to 
fund your division. I think that is very critical that we look 
toward doing that, so that we can protect our fair and 
competitive market.
    AAG Kanter, I am a huge supporter of fair market 
competition and find that it is necessary for our industries to 
prosper. As major companies begin their mergers and their 
acquisition pursuits what considerations does the division use 
to determine if the acquisition would be harmful?
    Mr. Kanter. Thank you for your question, and I appreciate 
the sentiment very much. The American Dream depends on access 
to markets, the American Dream depends on upward mobility for 
workers, and the America Dream depends on the opportunity of 
anybody in the country with a great idea to build a business, 
whether it's in an urban community or a rural community, and we 
fight day in and day out to preserve that opportunity by 
enforcing the antitrust laws.
    The considerations that go into bringing a merger first and 
foremost are written in law. Congress passed the Clayton Act. 
We enforce the Clayton Act. It's been interpreted for over a 
century by courts. We are very much adherent to those core 
precedents, and we follow the law and the facts wherever it 
takes us.
    At the same time sometimes, facts change; sometimes market 
realities change and evolve. That's a wonderful thing, but we 
have to make sure that we keep pace. That is why we're in the 
process of updating our merger guidelines to make sure that we 
can reflect and stay consistent with the applicable legal 
precedent, but also understand that the world as it exists 
today is different than it existed 20 or 30 years ago. As 
market realities change, the tools that we use to understand 
those market realities need to evolve as well.
    Ms. McBath. Thank you for that. As these mergers continue 
to take place, which we know that they will, what 
considerations are made by the Antitrust Division to determine 
if suppliers, small businesses, and local service providers are 
actually protected?
    Mr. Kanter. So, one of the most important things that we 
have not done, but need to do is to make sure that we're having 
a conversation with those who are most impacted by 
concentration and consolidation. So, we've taken an effort to 
not just make sure that we are enforcing the law effectively, 
but to have a conversation to change the language of antitrust 
so that we can engage with those communities who are most 
affected. They understand better than anyone what the effect of 
a transaction might be, whether it's a small business looking 
to survive, whether it's a consumer looking to get a lower 
price, or a new entrant looking to start a new business and 
thrive.
    So, we are working diligently and vigorously to make sure 
that we are changing the language of antitrust and our process 
so that it is more accessible and more open to the public.
    Ms. McBath. As we always say, just go to the source. 
Correct?
    Mr. Kanter. Correct.
    Ms. McBath. Thank you so much. I appreciate it.
    Thank you so much, Chair.
    Thank you for your testimony today, AAG Kanter, and I yield 
the balance of my time.
    Chair Jordan. Thank you, Ms. McBath. The gentlelady yields 
back.
    That concludes today's hearing. We thank the witness for 
appearing before the Committee today. I thank you for making 
yourself available to us between hearings as well.
    Without objection, all Members will have five legislative 
days to submit additional written questions for the witness or 
additional materials for the record.
    Without objection, the hearing is adjourned.
    [Whereupon, at 12:42 p.m., the Subcommittee was adjourned.]

    All materials submitted for the record by Members of the 
Subcommittee on the Administrative State, Regulatory Reform, 
and Antitrust can be found at: https://docs.house.gov/
Committee/Calendar/ByEvent.aspx?EventID=116568.

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