Antitrust policies play an important but delicate role in the
economy
. In particular, as my
Federal Trade Commission
predecessors in the Clinton administration wrote, “Careful, intense factual investigation is necessary” when evaluating the competitive effects of antitrust on innovation.
That sentiment appears lost on FTC Chairwoman
Lina Khan
, whose antitrust policies endanger innovation. The FTC has abandoned antitrust law’s long-standing focus on protecting consumers and radically expanded the scope of its authority to police “unfair methods of competition” — now effectively defined in terms of a “we know it when we see it” standard. The agency has become the proverbial bull in the china shop, ignoring the bipartisan legal and economic consensus that, over recent decades, helped create a stable legal environment to encourage unprecedented innovation and technological progress.
BIDEN MAY BUCK BIPARTISAN VOTE TO KEEP MORTGAGE OVERHAUL IN PLACE
Mergers can facilitate innovation — just look at Amazon’s recently closed acquisition of One Medical, which will leverage the e-commerce giant’s reach to expand people’s access to a new model of high-quality and convenient healthcare. Likewise, Johnson & Johnson’s acquisition of Abiomed is poised to bring Abiomed’s breakthrough technologies for heart, lung, and kidney support to many more patients.
There is perhaps no better example of the new FTC’s aggression than its continued assault against Illumina, which has begun its appeal of the FTC’s decision ordering the company to divest its acquisition of GRAIL. This deal is another important example of the dynamism that drives American innovation and is now in jeopardy. At bottom, the FTC puts convoluted theories of antitrust ahead of the significant benefits that the acquisition would likely create, including the ability to scale healthcare innovation and help patients around the world.
Illumina, a leading provider of next-generation DNA sequencing platforms, acquired GRAIL, developer of the groundbreaking Galleri multicancer early detection test. Galleri examines fragments of DNA in a patient’s blood sample to identify cancerous cells in asymptomatic patients. It is a generation-defining breakthrough against cancer, and no similar tests are on the horizon. To analyze the DNA in the blood samples, GRAIL uses Illumina’s sequencing platforms. Illumina notes in its opening appeal brief that had the FTC approved the merger, commercialization of GRAIL’s award-winning test would have greatly progressed today, reducing the cancer burden in the United States and worldwide while saving thousands of lives.
Despite all these benefits, the current FTC ordered Illumina and GRAIL, companies that do not compete, to unwind their merger by alleging possible harm to competition in a market that does not exist. In doing so, the FTC overturned its own administrative law judge’s 200-page opinion holding otherwise and ignored the remedy proposed by Illumina and GRAIL to address the FTC’s concerns. Rather than a “careful, intense factual investigation” of possible competition problems, the opinion paradoxically finds harm based on scant evidence while setting an unattainable standard for recognizing the merger’s likely benefits.
The FTC’s opinion applies this double standard to tip the scales in its favor. To assess harm to competition, in the case of Illumina and GRAIL, it merely required a “reasonable likelihood” of lessening competition — well short of the normal “probable” standard. By contrast, the FTC imposed a heightened standard (well above “probable”) for the merging parties to prove the benefits for the transaction. That standard runs contrary to the government’s own Vertical Merger Guidelines (which the FTC conveniently abandoned at the time it brought this suit). Unsurprisingly, after applying this double standard, the FTC concluded that while the harm from the transaction is demonstrable, its pro-competitive benefits remain unclear.
Exactly the opposite is true. The Illumina-GRAIL merger will likely benefit consumers by providing them with life-saving technologies more quickly and at lower prices. Meanwhile, the alleged “harms to competition” are based not on facts but speculations about a market that is predicted to exist many years in the future. The FTC’s double standard thus perversely turns the Clinton FTC’s warnings about innovation on their head. Illumina-GRAIL should not be penalized for their innovative zeal and particularly not on the speculative allegations the commission adopts.
Because it rejects prevailing antitrust standards long accepted on both sides of the aisle, the FTC’s unsubstantiated opinion should not withstand scrutiny. Indeed, a decision from the appellate court could come as soon as this year following Illumina being granted an expedited review process.
The judiciary has an opportunity to counteract an FTC whose aggressive policies will chill the innovation that has been the lifeblood of the economy, putting patients’ lives at risk.
CLICK HERE TO READ MORE FROM RESTORING AMERICA
Tim Muris served as chairman of the Federal Trade Commission from 2001–2004. He is a George Mason University Foundation professor at Antonin Scalia Law School and senior counsel at Sidley Austin, where Illumina is a client.
