FTC Watch Cites Moss Comments in “Bayer-Monsanto settlement stirs debate over value of Tunney Act”

In an in-depth analysis of the role of the Tunney Act in merger control and adequacy of remedies contained in consent orders, the February 15, 2019 issue of FTCWatch quoted AAI President, Diana Moss, on the importance of the Tunney Act in an era of rising concentration, evidence of failed remedies, and mega-mergers.

But Diana Moss…has a different take, saying the country is at a different point, a “new phase” that calls for using all tools, including the Tunney Act, to combat growing concentration that diminishes competition.

“We are not giving up on the Tunney Act,” Moss said in an interview. “That doesn’t mean that we are going to be writing Tunney Act comments for the rest of our days over here at AAI. It is important to view the Tunney Act process in a new light, given concerns over declining competition, failed remedies, mega-mergers and higher levels of concentration.”

“The hope is that judges would see the importance of the Tunney Act process, and they would scrutinize the record and the consent to determine whether it absolutely addresses the concerns raised in the complaint,” Moss said. “If it doesn’t, then they should use that … as a way to further the vigor of enforcement.”

“The fact that numerous parties file comments in Tunney Act proceedings — jumping up and down, waving their arms, saying ‘this doesn’t do it, there is not a nexus here’ — a thoughtful, careful judge could exert some pressure on the process,” Moss said.