$101 Million?!? The Ridiculous FTC Interference Minimum

Published July 6, 2023

I’ve broached this subject previously in passing, but it is so titanically stupid – I thought it deserved some Independence Day isolated attention.

The Joe Biden Administration’s Federal Trade Commission (FTC) – under the stewardship of anti-economic activity Chair Lina Khan Is completely out of control.

FTC: Over-Crying ‘Wolf!’ – While Unleashing the Government Wolves

FTC Took Biden’s Stupid Shotgun Advice

The FTC Is Hyperactive – And Attempting Time Travel

Biden’s FCC Is One Senate Vote Away from Being as Crazy as Biden’s FTC

The Wrath of Khan: FTC Chair Loathes Our System – Impeach Her

It would certainly be outstanding were the Congress to impeach Chair Khan.  But even if the Republican House were to find its nerve and do so – the Democrat Senate would never convict.

But here’s something that might get bipartisan, bicameral support:

Modernizing the woefully out-of-date monetary minimum – that over-allows for such FTC hyper-activity on all things merger:

“Here’s how the FTC describes its Merger Review process:

“‘Among the key provisions in U.S. antitrust law is one designed to prevent anticompetitive mergers or acquisitions. Under the Hart-Scott-Rodino Act, the FTC and the Department of Justice review most of the proposed transactions that affect commerce in the United States and are over a certain size, and either agency can take legal action to block deals that it believes would ‘substantially lessen competition.’

“‘Although there are some exemptions, for the most part current law requires companies to report any deal that is valued at more than $101 million to the agencies so they can be reviewed.’

“The US in 2022 had a $25.4 trillion economy.  So a deal worth a measly $101 million triggering FTC-DOJ activity?  Seems a mite…hyper-over-active.”

Indeed it does.

What – and when – was the Hart-Scott-Roding Act?  Glad you asked:

“The Hart–Scott–Rodino Antitrust Improvements Act of 1976 (HSR Act) is a set of amendments to the antitrust laws of the United States, principally the Clayton Antitrust Act….

“The HSR Act provides that parties must not complete certain mergers, acquisitions or transfers of securities or assets, including grants of executive compensation, until they have made a detailed filing with the U.S. Federal Trade Commission and Department of Justice and waited for those agencies to determine that the transaction will not adversely affect U.S. commerce under the antitrust laws….

“The Act provides that before certain mergers, tender offers or other acquisition transactions (including certain grants of executive compensation) can be completed, both parties must file a ‘notification and report form’ with the Federal Trade Commission and the Assistant Attorney General in charge of the Antitrust Division of the Department of Justice.”

“Certain mergers” – means (in part) any merger over that absurd $101 million threshold.  A minuscule amount – that was absurd when created in 1976.  It is RIDICULOUSLY absurd in 2023.

The $101 million minimum – is the prospective combined value of the merged businesses.  That’s two businesses – or more – combining to an aggregate $101 million valuation.

In today’s economy – with today’s hyper-inflated money – that seems…low.

Upping the minimum – and perhaps indexing it to inflation?  Are some small-ball reforms – that might actually generate some bipartisan support.

You can also maybe – maybe – toss in some additional small-ball FTC reforms.  That similarly update the antiquated laws that currently apply.  That may also generate some bipartisan support.

DC is always looking to do its Bipartisanship Dance.

Here’s a chance to cue the music.