identify and assess the potential effectiveness of other policy choices, including increased reliance on market competition or pursuit of a different government program;

suggest ways of enhancing agency procedures to improve the determination of technical and factual questions while reducing delay and increasing the representation of all legitimate interests;

assess the cost of modifying existing agencies and making the transition to preferred policy alternatives;

make recommendations about the transfer, consolidation, modification, or elimination of functions; the reform of structures and procedures; the merger, modification, establishment, or abolition of regulations or agencies; the elimination or phasing out of outdated, overlapping, or conflicting regulatory jurisdictions or requirements; the reduction of delay; improving the representation of affected interests; and the advantages that might come from increased reliance on economic competition or private incentives.

SUNSET: PERIODIC REAUTHORIZATION

RECOMMENDATION 12: The Commission and the ABA support a limited form of sunset legislation which would require review and reauthorization by the Congress of federal regulatory agencies or functions and embody the following considerations:

(a) Until it is demonstrated by experience that Congress can accomplish a substantial number of reviews and reauthorizations effectively within a short period of time, sunset legislation should not require review of more than a very limited number of regulatory agencies or regulatory functions by any one Congress.

(b) The legislation should delegate to the President, subject to approval by both Houses of Congress, the authority and responsibility of designating the agencies or regulatory functions to be reviewed and subjected to automatic

termination (under paragraph (d) below) unless reauthorized by
new legislation.

(c) Reports to Congress on the agencies or regulatory
functions scheduled for review, should be prepared by the
Office of Management and Budget, the General Accounting
Office, the Congressional Budget Office, and the affected
agencies themselves. The legislation should establish criteria
for the comprehensiveness and usefulness of these reports.
The schedule should permit enough lead time for the
completion and publication of such reports in advance of
consideration by the appropriate committees of Congress, and
should provide for full public participation in the review
process.

(d) Sunset legislation should provide an orderly method by which agencies may be phased out if they are not reauthorized.

(e) Sunset legislation should provide procedural safeguards to require that legislation drafted in response to sunset review should be discharged promptly from committee and given prompt consideration on the floor and by conference committees.

(f) Sunset legislation should apply to all forms of government regulation and should not exclude particular regulatory agencies or functions from intensive review.

Pending Legislative Proposals

Since publication of the Exposure Draft of this report in August 1978, a number of major bills have been introduced in the 96th Congress which would carry out, in varying degrees, those recommendations in this Report which require new legislation. Certain of these pending bills contain provisions for periodic reauthorization of regulatory agencies and functions, or variations thereof. A predecessor of one such bill passed the Senate at the end of the 95th Congress and was reintroduced as S. 2 (January 15, 1979). Other major bills are S. 262 (introduced January 31, 1979), S. 445 (introduced February 21, 1979), S. 755 (introduced March 26, 1979) and S. 1291 (introduced June 6, 1979). Representatives of the Commission have testified before Committees of Congress as to the extent to which these measures reflect the principles of this Report. Detailed commentary on the pending bills is not included here, but the Commission commends their sponsors and the appropriate Committees of Congress for the initiative reflected in the legislative activity to date which parallels many of the objectives of this Report. Nonetheless, much remains to be done.

CKS-3

THE EXTENT TO WHICH FEDERAL AGENCIES MUST CONSIDER
ANTITKUST POLICIES: AN ANALYSIS OF THE POTENTIAL
IMPACT OF TITLE II OF S. 1291, 96th CONGRESS

Introduction

Title II of S. 1291, 96th Congress, entitled "A Procompetitive Standard For Federal Agencies," would require that specified actions taken by Federal agencies be "the least anticompetitive alternative legally and practicably available to achieve statutory goals." Specifically, it provides (in part):

Notwithstanding any other provision of law, no
Federal agency shall take any action that directly -
(1) regulates or licenses entry under a scheme
in which the level of entry is subject to limitation;
(2) sets, or reviews, with authority to accept,
reject, or modify, the monetary price charged for
goods or services;

(3) sets, limits, or allocates the production or
distribution of goods or services; or

(4) reviews, approves, rejects, or regulates the
terms and conditions of agreements among providers
or purchasers of goods and services,

unless it has considered the effects on competition
of such action and found that such action is the
least competitive alternative legally and practicably
available to achieve statutory goals.

It further provides that the provisions of clauses (1) and (3) above shall not apply in cases in which an agency bases its action upon a finding that an applicant for entry or a licensee, or a good or service, "does not meet specified standards of health or safety as required by a law that specifically regulates health or safety."

This report will analyze the potential impact of S. 1291 on Fed