The Regulatory Governance of the Executive Order on Promoting Competition in the American Economy: a Comparative View

It can be stated that the U.S. (besides the EU) is the main antitrust international benchmark. On the other hand, its OECD general PMR indicator (that measures the degree to which regulatory policies promote or restrict competition) is not so good (WSJ, 2021; GUIMARAES, 2021: 19) : 1,71, significantly higher (worse) than the average indicator of the OECD member countries (1,43) – the best indicator is the one of the UK (0,78), while the less procompetitive is the one of China (2,99). As the Biden administration knows, the majority of the issues addressed by the Executive Order on Promoting Competition (EO) are not only American , but mainly global. In my recent paper cited above, I made a preliminary effort to demonstrate that anticompetitive laws and regulations (harming consumer welfare or other possible controversial policy goals – PPR, 2021) are indeed a global challenge, which is evidenced by the fact that diverse countries have some mechanism for making competition and regulatory authorities interacting (“findings”), and thus expectedly producing regulation that is more procompetitive. Key references are OECD Best Practice Roundtables on Competition Policy and jurisdictions such as (OECD, 2019; OECD, 2021a) Australia, Belgium, Brazil, Colombia, Czech Republic, European Union, Israel, Italy, Korea, Mexico, Norway, Peru, Russia, Spain, Taiwan, UK, Ukraine, and USA (see also OECD 2021b) . It should be highlighted that these are remarkably interdisciplinary issues, in need of a proficient dialogue between academic disciplines in the field of social sciences and management. This is evidenced by the fact that competition policy is generally divided between two or three branches (merger review and anticompetitive practices, the latter subdivided between cartels and unilateral conducts), and little attention is given to the so called competition advocacy (GUIMARAES, 2015: 408) – that goes well beyond legal proceedings and economic analyses present in the traditional branches of antitrust policy – in which the authority has to interact with legislators, regulators, private sector, and nonprofits, thus exercising its political and public management functions (BARZELAY, 2019: 157) in full, even when this is done strictly in accordance with the mandate of an independent agency. In this sense, there are some sections of the EO that are particularly important in terms of regulatory (and competition) governance. Describing the sections more broadly, and already focusing on its importance in comparative terms: (5.u) addresses the relationship between regulatory oversight bodies (ROBs) and competition agencies; (4, 3.a, 2.d.i-ii, and 2.c) create the “White House Competition Council”, responsible for coordinating the “Whole-of-Government” competition policy promoted by the EO, e.g. developing procedures for agency cooperation on matters of overlapping jurisdiction in the policing of anticompetitive conduct and the oversight of mergers; (2.g and 2.d.iii) state that agencies can and should adopt pro-competitive regulations and rescind regulations that create unnecessary barriers to entry. This paper will build upon current findings summarized above through additional country and international organization contributions, and focusing on the three sets of regulatory governance issues stressed in the preceding paragraph. 1- https://www.wsj.com/articles/the-man-behind-bidens-push-to-promote-business-competition-11625851555: [Tim Wu] has called for using regulations to achieve goals often associated with antitrust laws; GUIMARAES, D. Abuse of Regulatory Power: a step forward in the journey towards effective competition advocacy in the public sector, regulatory improvement and oversight? Paper presented at the ECPR Reg-Gov 8th Biennial Regulatory Conference – Day 3, Panel 9.4 (https://ssrn.com/abstract=3930433). 2- https://www.whitehouse.gov/briefing-room/presidential-actions/2021/07/09/executive-order-on-promoting-competition-in-the-american-economy/ 3- https://www.theregreview.org/2021/07/26/coopersmith-biden-executive-order-restructuring-competition/: “The (…) [FTC] has also recently announced that it is abandoning its exclusive reliance on the traditional consumer welfare basis for its antitrust decisions”. 4- https://www.oecd.org/daf/competition/independent-sector-regulators.htm; https://www.oecd.org/daf/competition/competition-enforcement-and-regulatory-alternatives.htm 5- https://www.oecd.org/daf/competition/the-promotion-of-competitive-neutrality-by-competition-authorities.htm 6- GUIMARAES, D. A. Regulatory Policy Round Table: A Dialogue between Telecommunications and Antitrust Authorities. In: SANT’ORSOLA, F. C.; NOORMOHAMED, R.; GUIMARAES, D. A. (eds.). Communications and Competition Law: Key Issues in the Telecoms, Media and Technology Sectors. Alphen aan den Rijn, The Netherlands: Kluwer Law International, 2015, esp. pp. 408-411 (https://ssrn.com/abstract=2710412). 7- BARZELAY, M. Public Management as a Design-Oriented Professional Discipline. Cheltenhem, UK; Northhampton, MA, USA: Edward Elgar Publishing, 2019, pp. 157 and 79.