Document Type

Article

Publication Date

9-1-2020

Abstract

As empirical evidence of labor market concentration mounts, academics and policymakers advanced proposals to challenge or reverse its effects on workers’ wages and labor market options. Prominent among these is more aggressive review of the labor market effects of mergers by the Department of Justice (DOJ) and the Federal Trade Commission (FTC). This Essay argues for an alternative intervention: because placing exclusive jurisdiction over the labor market effects of mergers in the DOJ and FTC will be fundamentally limited for historical, doctrinal, institutional, and expertise-based reasons and as a matter of prophylactic policy, the National Labor Relations Board (“NLRB”) should have concurrent jurisdiction to review and approve mergers that the DOJ or FTC determine will substantially or moderately increase labor market concentration in a relevant labor market under a “public interest” standard.

The Essay first outlines the limitations of existing proposals to regulate labor market effects exclusively through the antitrust agencies’ merger review. Second, it catalogs and evaluates the range of interagency coordination between the antitrust and regulatory agencies on merger reviews, including but not limited to the antitrust agencies’ concurrent jurisdiction with the Federal Communications Commission. This overview documents how, in a significant number of industries outside of labor markets, regulatory agencies review and condition mergers under a “public interest” standard and based on their industry-specific knowledge and expertise. That deeper background of shared interagency jurisdiction contextualizes and supports the proposed extension of concurrent jurisdiction to labor agencies in merger reviews with labor market effects.

Finally, the Essay provides recommendations for how the Board’s concurrent jurisdiction could operate to integrate its expertise into the evaluation of post-merger labor market effects.

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