Reed Smith Client Alerts

The Senate voted yesterday to confirm the appointment of William P. Barr to serve as Attorney General, replacing acting Attorney General Matthew Whitaker. Barr previously served as Attorney General under President George H.W. Bush, and during his tenure, the Department of Justice (DOJ) implemented several important antitrust policy initiatives, at least one of which continues to impact antitrust enforcement to this day. Drawing from Barr’s prior stint as Attorney General, his professional experiences since, and his statements during the confirmation hearings, we outline below the potential impact on antitrust enforcement and policies that Barr could have as Attorney General.

Indicators of Barr’s views on antitrust enforcement

Barr’s antitrust experience is not limited to his tenure as the U.S. Attorney General. Following his first turn as Attorney General, he led a major telecommunications company through a number of high-profile mergers as General Counsel. Barr is now Of Counsel of a law firm that is active in the M&A space, and sits on the boards of several large, public companies, one of which has been in litigation with the DOJ over a high-profile merger. In that matter, Barr filed a declaration dueling with those filed by Assistant Attorney General for the Antitrust Division, Makan Delrahim and his Deputy, Andrew Finch, regarding remarks made in meetings between the DOJ’s Antitrust Division and the merging parties. In the confirmation hearings, Barr deftly avoided controversy on the subject, agreeing to recuse himself from the Antitrust Division’s actions regarding the merger.

While his testimony regarding antitrust enforcement did not create many headlines, Barr importantly affirmed his commitment to the consumer welfare standard. The consumer welfare standard, which generally provides that enforcers should look to overall consumer welfare and economic efficiency in evaluating competitive effects, has largely guided antitrust enforcement for the past 40 years. Yet, the standard has come under fire from those advocating that enforcers adopt a standard focused more on market concentration or the competitive process. While this debate continues among academics and practitioners, Barr’s testimony made clear that the consumer welfare standard will help guide enforcement by the Antitrust Division under his watch.

Additionally, Barr’s previous experience indicates he will encourage interagency cooperation. During Barr’s tenure as Attorney General, the DOJ and the FTC published the 1992 Horizontal Merger Guidelines, which were the first joint merger guidelines from the two agencies. The guidelines introduced a structured framework for analyzing mergers and clarified the significance of unilateral effects and market entry. Barr lauded the cooperative effort between the agencies as a “major step forward,” adding that “the standards to be applied should not depend on which agency is analyzing a particular merger.