U.S. Lawmakers Press For Answers On ESG And FTC Antitrust Enforcement

More than three dozen members of the U.S. House of Representatives recently wrote a letter to Federal Trade Commission (FTC) Chair Lina Khan demanding that she clarify how the FTC uses environmental, social, and governance (ESG) factors when it is enforcing U.S. antitrust laws.

The letter alleged that, over the last several months, FTC staff and leadership have made “conflicting comments” regarding this process and its standards.  In congressional testimony, for example, Chair Khan declined to say whether she would block a merger if it met traditional competition criteria, but fell short of some standard of environmental, equity, or other ESG goal. Chair Khan also has said a company’s ESG commitments are “irrelevant” to the FTC.

Other FTC leaders have clearly stated ESG concerns could be considered during the FTC’s antitrust review, however. For example, FTC Office of Policy and Coordination Deputy Assistant Director Synda Mark has suggested that a “plain reading of” antitrust laws can take into account so-called social values. Mark also argued these values “are embedded in not only the history, but the actual meaning of the antitrust statutes that we have.”

The lawmakers asked Chair Khan to “promptly provide all documents and communications from the Office of Policy and Coordination related to the preparation of” Mark’s comments. The lawmakers also noted they are prepared to explore legislation that would “curtail the FTC’s abuse of power” and “maintain the United States’ reputation for administrable, predictable, and credible antitrust enforcement.”

Read the full letter here.