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95TH CONGRESS 2D SESSION
IN THE SENATE OF THE UNITED STATES
MARCH 1 (legislative day, FEBRUARY 6), 1978
Mr. KENNEDY introduced the following bill; which was read twice and referred to the Committee on the Judiciary
To amend the Clayton Act by strengthening and facilitating the carrying out of antitrust and procompetitive policies by agencies of the Federal Government, and for other purposes.
Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,
3 That this Act may be cited as the "Competition Improve
4 ments Act of 1978".
6 SEC. 2. (a) FINDINGS.-The Congress finds and
7 declares that
DECLARATION OF POLICY
(1) this Nation is founded upon and committed to
a private enterprise system and a free market economy,
(b) POLICY.-It is the purpose of this Act to reaffirm 14 that the fundamental national economic policy of the United
15 States is free and open competition by
in the belief that competition protects consumers, pro
motes efficiency, and spurs innovation;
(2) economic regulation by Federal agencies has at times created unnecessary losses for consumers, fostered inefficiency, and stifled innovation;
(3) Federal agencies have taken actions which are more anticompetitive than necessary to achieve statutory goals;
(4) adherence to a definitive and formal antitrust standard by Federal agencies will reduce losses to consumers, improve efficiency, and remove impediments to innovation.
(1) minimizing anticompetitive behavior in regulated industries;
(2) establishing procedures that strengthen and facilitate the application of antitrust and procompetitive
policies by Federal agencies; and
(3) enabling Federal agencies better to restore, maintain, and protect open and vigorous competition in the marketplace.
ANTITRUST STANDARD FOR FEDERAL AGENCIES
SEC. 3. (a) Notwithstanding any other provision of 3 law, no Federal agency shall take any action, the effect of 4 which may be substantially to lessen competition, to tend to 5 create a monopoly, or to create or maintain a situation in6 volving a significant burden on competition, unless it finds 7 that
(1) such action is necessary to accomplish an overriding statutory purpose of the agency;
(2) the anticompetitive effects of such action are clearly outweighed by significant and demonstrable benefits to the general public; and
(3) the objectives of the action and the overriding statutory purpose cannot be accomplished in substantial part by alternative means having lesser anticompetitive
(b) The findings, if required by section 3 (a), shall be 18 included in any opinion accompanying an agency order and 19 shall be included in the statement of basis and purpose incor20 porated in any rule or regulation.
21 (c) The Attorney General and the Federal Trade Com22 mission may render advice to the agency regarding the find23 ings required by section 3 (a).
1 ADDITIONAL ANTITRUST REQUIREMENTS FOR CERTAIN
SEC. 4. (a) Each independent regulatory agency as defined in section 8 (c) of this Act, after consultation with the
Attorney General and within one hundred and twenty days
after enactment of this Act, shall establish procedures by 7 which the Attorney General will be notified of important
8 pending agency action subject to section 3 (a).
(b) In any administrative or judicial proceeding subject 10 to section 3 (a) and involving independent regulatory agen11 cies, as defined in section 8 (c), the Attorney General and the 12 Federal Trade Commission may each appear as a party of 13 right.
(c) Each independent regulatory agency as defined in 15 section 8 (c) must convene a hearing or other appropriate 16 proceeding if, in the opinion of the Attorney General, the 17 requirements of section 3 (a) have not been met and a hear18 ing has not already been held pursuant to section 553 or 556 19 of title 5, United States Code.
(d) The Attorney General and the Federal Trade Com21 mission may utilize any and all powers conferred upon them 22 by any other provision of law, including the antitrust laws 23 and the Antitrust Civil Process Act (15 U.S.C. 1311), in 24 carrying out their responsibilities under this Act.
SEC. 5. (a) In any proceeding for judicial review of an 3 Lagency order involving an action subject to section 3 (a),
4 the agency or other proponent of the action has the burden
of establishing by substantial evidence based on the record
as a whole that the requirements of section 3 (a) have been 7 met.
8 (b) In any action where the court finds an agency in
9 violation of section 3 (a), the court may award costs of liti10 gation (including reasonable attorneys' and expert witness 11 fees) to any party if—
(1) in the judgment of the court, the initiation and prosecution of such action served an important public interest; and
(2) (A) the economic interest of the person is small in comparison to the costs of effective participation in the action by that person, except that if the person is a group or organization, the economic interests of a substantial number of members of such group or organization taken individually are small in comparison to the costs of effective participation in such action, or
(B) the person demonstrates to the satisfaction of the court that such person does not have sufficient resources adequately to participate in the action in the absence of an award under this subsection.