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To consumer advocates, Obama's antitrust enforcement looks like more of the same

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By Jia Lynn Yang
Washington Post Staff Writer
Tuesday, September 7, 2010; 11:27 PM

When President Obama took office, he promised to undo eight years of what he called the weakest antitrust enforcement in half a century. Consumer advocates held their breath for a dramatic shift that would hark back to the 1990s, when the last Democratic administration pursued a landmark case against Microsoft.

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A year and a half later, they're still waiting. The Justice Department's antitrust division has yet to exercise its signature power: to bring a case against a corporate titan suspected of abusing its dominance. In its other central role, as a merger cop, the division challenged in court fewer than half as many deals in 2009 as the Bush administration did in its last year in office, though the number of mergers also declined by about half.

Instead, federal antitrust lawyers have eschewed aggressive litigation against big business in favor of a less-risky approach that works with companies to resolve anti-competitive concerns, according to many antitrust experts.

"They're running a good shop. It's just not markedly different," said Albert A. Foer, president of the American Antitrust Institute, a research and advocacy group. "Anybody that wants to argue the Obama administration is anti-business or socializing America is not going to find much evidence in the antitrust division."

A pattern is emerging in how the administration treats corporate America. In spite of some tough rhetoric, Obama has shown a certain reluctance to radically reshape industries. Rather than break up big Wall Street banks, the White House largely pressed to toughen rules as part of the financial regulatory overhaul. Instead of putting limits on how much bank executives earn, the administration encouraged federal supervisors to push these firms to tie pay to performance.

A scalpel, not a cudgel

Likewise, the antitrust division has shown itself more likely to use a scalpel than a blunt instrument when a merger has crossed its desk. When faced with mergers it worries will hurt competition, the Justice Department has forced companies to make some changes, such as spinning off a business line. But with one exception involving dairy processors, it has not gone to court to block deals, including the controversial marriage of Ticketmaster and Live Nation, the recent United-Continental airline merger and the union of the two biggest makers of voting machines in the nation.

Some consumer groups said that the department's measures didn't go far enough and that they have been disappointed by the lack of big cases so far, pointing to potential antitrust targets such as Google, big health insurers and Monsanto, an agricultural conglomerate. Others say that it's too soon to grade the administration but that the real test will be how it handles, possibly this year, the proposed NBC-Comcast merger, which has broad implications for consumers and industry competitors.

"I think they have yet to prove their mettle in the antitrust area, and I'm still hoping they take on some tough cases and go to the mat," said Sally Greenberg, executive director of the National Consumers League.

Obama's antitrust chief, Christine Varney, said in an interview that the Justice Department should not be judged by how often it goes to court but rather by the results she gets after she confronts companies. The antitrust division also has several ongoing investigations into suspected monopolies, Varney would not comment on any particular companies.

In the area of merger enforcement, firms have walked away from six deals after hearing the department's concerns. In other cases, Varney said, Justice has been able to extract tough concessions that resolved the division's concerns, getting better terms than lawyers might have achieved had they gone to court.

And with the economy's slowdown, there have been fewer mergers coming across Varney's desk - and fewer chances to challenge deals, justice officials said.

"I'm happy to litigate. I think everyone knows that," Varney said in a recent interview.


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