Statement on Signing the Hart-Scott-Rodino Antitrust Improvements Act of 1976.
AFTER CAREFUL reflection, I am signing into law today H.R. 8532, the Hart-Scott-Rodino Antitrust Improvements Act of 1976. This bill contains three titles, two of which my administration has supported and one--the "parens patriae" title--which I believe is of dubious merit.
Competition and antitrust policies
I am proud of my administration's record of commitment to antitrust enforcement. Antitrust laws provide an important means to achieving fair competition. Our Nation has become the economic ideal of the free world because of the vigorous competition permitted by the free enterprise system. Competition rewards the efficient and innovative business and penalizes the inefficient.
Consumers benefit in a freely competitive market by having the opportunity to choose from a wide range of products. Through their decisions in the marketplace, consumers indicate their preferences to businessmen, who translate those preferences into the best products at the lowest prices.
The Federal Government must play two important roles in protecting and advancing the cause of free competition.
First, the policy of my administration has been to vigorously enforce out antitrust laws through the Antitrust Division of the Department of Justice and the Federal Trade Commission. During an inflationary period, this has been particularly important in deterring price-fixing agreements that would result in higher costs to consumers.
Second, my administration has been the first one in 40 years to recognize an additional way the Federal Government vitally affects the environment for business competition. Not only must the Federal Government seek to restrain private anticompetitive conduct but our Government must also see to it that its own actions do not impede free and open competition. All too often in the past, the Government has itself been a major source of unnecessary restraints on competition.
I believe that far too many important managerial decisions are made today not by the marketplace responding to the forces of supply and demand, but by the bureaucrat. Government regulation is not an effective substitute for vigorous competition in the American marketplace.
In some instances, government regulation may well protect and advance the public interest. But many existing regulatory controls were imposed during uniquely transitory economic conditions. We must repeal or modify those controls that suppress rather than support fair and healthy competition.
During my administration, important progress has been made both in strengthening antitrust enforcement and in reforming Government economic regulation.
In the last 2 years, we have strengthened the Federal antitrust enforcement agencies. The resources for the Antitrust Division and the Federal Trade Commission's Bureau of Competition have been increased by over 50 percent since fiscal year 1975. For the Antitrust Division, this has been the first real manpower increase since 1950. I am committed to providing these agencies with the necessary resources to do their important job.
This intensified effort is producing results. The Antitrust Division's crackdown on price-fixing resulted in indictment of 183 individuals during this period, a figure equaled only once in the 86 years since enactment of the Sherman Act. The fact that the Division presently has pending more grand jury investigations than at any other time in history shows these efforts are being maintained.
To preserve competition the Antitrust Division is devoting substantial resources to investigating anticompetitive mergers and acquisitions. At the same time, the Division is litigating large and complex cases in two of our most important industries--data processing and telecommunications.
The cause of vigorous antitrust enforcement was aided substantially when I signed the Antitrust Procedures and Penalties Act of 1974, making violation of of the Sherman Act a felony punishable by imprisonment of up to 3 years for individuals, and by a corporate fine of up to $1 million.
Also, in December 1975, I signed legislation repealing fair trade enabling legislation. This action alone, according to various estimates, will save consumers $2 billion annually.
On the second front of reducing regulatory actions that inhibit competition, I have signed the Securities Act Amendments of 1975 and the Railroad Revitalization and Regulatory Reform Act, which will inject strong closes of competition into industries that long rested comfortably in the shade of Federal economic regulation.
My administration has also sponsored important legislative initiatives to reduce the regulation of other modes of transportation and of financial institutions. An important element of my regulatory reform proposals has been to narrow antitrust immunities which are not truly justified. Although Congress has not yet acted on these proposals, I am hopeful that it will act soon. All industries and groups should be subject to the interplay of competitive forces to the maximum extent feasible.
A measure of my commitment to competition is the Agenda for Government Reform Act which I proposed in May of this year. This proposal would require a comprehensive, disciplined look at ways of restoring competition in the economy. It would involve in-depth consideration of the full range of Federal regulatory activities in a reasonable--but rapid--manner that would allow for an orderly transition to a more competitive environment.
This competition policy of regulatory reform and vigorous antitrust enforcement will protect both businessmen and consumers and result in an American economy which is stronger, more efficient, and more innovative.
Hart-Scott-Rodino Antitrust Improvements Act of 1976
I believe the record of this administration stands as a measure of its commitment to competition. While I continue to have serious reservations about the "parens patriae" title of this bill, on balance, the action I am taking today should further strengthen competition and antitrust enforcement.
This bill contains three titles. The first title will significantly expand the civil investigatory powers of the Antitrust Division. This will enable the Department of Justice not only to bring additional antitrust cases that would otherwise have escaped prosecution but it will also better assure that unmeritorious suits will not be filed. These amendments to the Antitrust Civil Process Act were proposed by my administration 2 years ago, and I am pleased to see that the Congress has finally passed them.
The second title of this bill will require parties to large mergers to give the Antitrust Division and the Federal Trade Commission advance notice of the proposed mergers. This will allow these agencies to conduct careful investigations prior to consummation of mergers and, if necessary, bring suit before often irreversible steps have been taken toward consolidation of operations. Again, this proposal was supported by my administration, and I am pleased to see it enacted into law.
I believe these two titles will contribute substantially to the competitive health of our free enterprise system.
This legislation also includes a third title which would permit State attorneys general to bring antitrust suits on behalf of the citizens of their States to recover treble damages. I have previously expressed serious reservations regarding this "parens patriae" approach to antitrust enforcement.
As I have said before, the States have authority to amend their own antitrust laws to authorize such suits in State courts. If a State legislature, representing the citizens of the State, believes that such a concept is sound policy, it ought to allow it. I questioned whether the Congress should bypass the State legislatures in this instance. To meet in part my objection, Congress wisely incorporated a proviso which permits a State to prevent the applicability of this title.
In price-fixing cases, this title provides that damages can be proved in the aggregate by using statistical sampling or other measures without the necessity of proving the individual claim of, or the amount of damage to, each person on whose behalf the case was brought. During the hearings on this bill, a variety of questions were raised as to the soundness of this novel and untested concept. Many of the concerns continue to trouble me.
I have also questioned the provision that would allow States to retain private attorneys on a contingent-fee basis. While Congress adopted some limitations which restrict the scope of this provision, the potential for abuse and harassment inherent in this provision still exists.
In partial response to my concerns, Congress has narrowed this title in order to limit the possibility of significant abuses. In its present form, this title if responsibly enforced, can contribute to deterring price-fixing violations, thereby protecting consumers. I will carefully review the implementation of the powers provided by this title to assure that they are not abused.
Individual initiative and market competition must remain the keystones to our American economy. I am today signing this antitrust legislation with the expectation that it will contribute to our competitive economy.
Note: As enacted, H.R. 8532, approved September 30, 1976, is Public Law 94-435 (90 Stat. 1383).
Gerald R. Ford, Statement on Signing the Hart-Scott-Rodino Antitrust Improvements Act of 1976. Online by Gerhard Peters and John T. Woolley, The American Presidency Project https://www.presidency.ucsb.edu/node/241554