Five Things Makan Delrahim Has Said About Antitrust Policy
The Justice Department's antitrust chief is facing questions about his independence amid reports that the DOJ could force AT&T to sell CNN when and if its deal with Time Warner is approved.
November 09, 2017 at 04:56 PM
4 minute read
The top Justice Department official in charge of antitrust has been at the agency only a little over a month, but he's already facing controversy.
Makan Delrahim, the assistant attorney general for antitrust and a former partner at Brownstein Hyatt Farber Schreck, has been thrust into the spotlight as news reports indicate the DOJ may fight AT&T's proposed $85.4 billion acquisition of Time Warner. Some reports indicate that DOJ officials want AT&T to sell off Turner Broadcasting System, which owns CNN, in order to gain approval for the deal.
President Donald Trump came out against the merger on the campaign trail, and The New York Times reported in July that White House advisers, fuming at CNN's coverage of the administration, saw the merger as a possible point of leverage. Kellyanne Conway, counselor to the president, told CNN Wednesday that Trump is not interfering with the DOJ's review of the deal.
Critics of the administration note that if the news is true, Delrahim appears to have changed his opinion at some point, because he said before his nomination that he didn't expect regulators to have issues with the AT&T deal. Any case the DOJ may now make against the deal could serve as the first test of Delrahim's independence from Trump.
What else has Delrahim said about antitrust policy? We scoured his past writings, speeches and interviews for possible insight:
On the deal itself: “Just the sheer size of it and the fact that it's media I think will get a lot of attention. However, I don't see this as a major antitrust problem,” Delrahim said on a Canadian news segment in October 2016.
He went on to explain that even if the deal were challenged, “the burden” lies with the DOJ to prove to an independent judge that the merger would have anti-competitive effects. “There certainly is a lot of power within the administration, however, it's not the ultimate power,” he said.
On challenging vertical mergers: “The vertical mergers most likely to require a close look by government enforcers are those where there is a risk that upstream or downstream competition may be foreclosed by the transaction,” Delrahim wrote in response to a question from Sen. Dianne Feinstein, D-California, following his confirmation hearing in May.
Delrahim refused to answer questions about the deal itself after his nomination, but he did respond to the senator's question on whether vertical mergers should concern regulators.
On independence from the White House: “The role of the AAG for antitrust is a law enforcement function,” Delrahim told Sen. Amy Klobuchar, D-Minnesota, during his hearing. “The independence of the decisions made in prosecuting and reviewing mergers as well as other conduct is a serious one that should be free from any political influence. They will be free, if I'm fortunate enough to be confirmed.”
Delrahim promised senators in the hearing that politics would not play any role in antitrust enforcement, and also noted that there are mechanisms in place to maintain that independence. That includes limiting contact between the White House and DOJ, he said.
On the purpose of antitrust law: “The role of antitrust law is not to keep everybody in business. The whole goal is to protect competition,” Delrahim told then-Law360 reporter J.J. Helland, now at CNN, in 2006. Delrahim was referring to his time at the DOJ in the George W. Bush administration, and pushing back on criticism that antitrust enforcement under Bush was too relaxed.
In the article, Delrahim was emphasizing that in reviewing antitrust cases, the DOJ should consider whether an action would adversely affect consumers, not just whether it may eliminate a competitor.
On how the DOJ examines media mergers: “Media mergers do get somewhat more public attention than other mergers because media is regarded as important to the functioning of a democracy,” Delrahim said in a 2003 speech while serving at the DOJ. “As a result, there has also been a fair amount of discussion of whether media deals should get a higher, or at least different, level of antitrust scrutiny. The Antitrust Division's approach to merger analysis in the media and entertainment industries generally utilizes the same framework we use to review mergers and other forms of strategic alliances in other, non-media industries.”
Delrahim was speaking at the Recording Artists' Coalition in Los Angeles. He added that for vertical mergers, the department scrutinized whether deals would “eliminate a key supplier or customer,” allowing the merged entity to raise rivals costs.
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