Comments in Response to Department of Justice, Anticompetitive Regulations Task Force, Docket No. ATR-2025-0001
May 27, 2025 | Submitted via: www.Regulations.gov | Download PDF
Department of Justice
Anticompetitive Regulations Task Force
Antitrust Division
450 5th St NW, Ste 8700
Washington, DC 20001
Introduction
The Coalition for Sensible Safeguards (CSS) appreciates the opportunity to provide comment[1] in response to the U.S. Department of Justice’s (DOJ’s) request for comments regarding its launch of the Anticompetitive Regulations Task Force. CSS is a coalition of over 200 groups united in the belief that regulation is critical to protecting the public and ensuring the prosperity of our country. For over 20 years, we have been dedicated to strengthening and improving the federal rulemaking process to ensure federal agencies serve the interests of the American people. We write to urge the Department of Justice (DOJ) to take a holistic view of regulatory benefits, including but not limited to competition, when assessing regulations under this initiative, to consider relying on studies that have concluded regulations do not have an overall negative impact on competition, and to take into account the demonstrated impact of regulations to drive competition, technology and innovation.
Singular Focus of Review is Problematic
CSS wants to ensure that this comment request, and potential actions taken by the Anticompetitive Regulations Task Force pursuant to the request, will not result in the repeal of existing regulations that are crucial to protecting the American people. Congress has passed dozens of laws intended to protect the public, such as the Clean Air Act, the Clean Water Act, the Occupational Safety and Health Act, the Mine Safety and Health Act, the Food Safety Modernization Act, the Consumer Product Safety Improvement Act, and the Fair Housing Act. Congress’ intent in enacting those laws was to direct federal agencies to issue implementing regulations to safeguard the public.
None of those laws give federal agencies discretion to repeal or weaken regulations based solely on their potential impact on marketplace competition. Thus, before any agency acts to repeal a regulation in response to recommendations made by DOJ’s Anticompetitive Regulations Task Force under this initiative, the agency must consider not only the regulation’s impact on competition but also factors specifically related to the laws that authorized such regulations. For example, if DOJ were to determine that a regulatory requirement had an impact on small business, but generated significant health and safety benefits, the implementing agency would need to assess the potentially significant adverse consequences of repealing the regulation on that basis.
Unfortunately, in its comment request, DOJ makes claims about the negative impact of regulation on competition and the economy that are unsupported and contradicted by the available economic evidence and studies.
For example, in the press release, DOJ states:
“[R]egulations can increase compliance costs, preventing businesses from competing on a level playing field with powerful corporations. Regulations can also discourage or even intentionally prohibit small businesses and new products from entering markets and lowering prices for American families. In contrast, eliminating unnecessary anticompetitive regulations makes it easier for businesses to compete.”
As discussed more below, a leading study entitled, “Is Regulation to Blame for the Decline in American Enterpreneurship?” rigorously analyzed regulation’s impact on economic dynamism and small business formation and found that regulation is not associated with any overall impact on the rate of business formation, dynamism in the economy, and competition generally.[2] In other words, regulation does not hurt competition according to the leading study on the topic and thus unsupported assertions to the contrary are misleading and problematic.
CSS urges DOJ’s Anticompetitive Task Force to take actions that are supported by high quality data and peer-reviewed studies to avoid such actions being viewed as arbitrary and capricious by impacted stakeholders, courts, and the broader public. To that end, CSS explains below that commonly cited studies claiming regulations cost the economy in the trillions of dollars have not been independently peer-reviewed and are so deeply flawed in terms of their methodology that they would never survive independent peer-review. CSS urges DOJ to be fully informed about these studies so that they are not cited or referenced in any way by DOJ as support for false claims that regulations negatively impact the economy.
Finally, as described below, regulations are key to spurring increased competition and innovation, an important factor that we urge DOJ to consider as it undergoes this review. It is essential that DOJ assess the impact of regulation on competition in a balanced and empirically sound manner, and consider the numerous benefits that regulations achieve. Thus we provide several examples of regulations that have both promoted competition and benefited the American people below, and a longer research report on the topic that CSS has recently released and is attached in full as an addendum to this comment.
Leading Study Documents that Regulations do not Negatively Impact the Economy
The leading study analyzing regulation’s impact on the level of competition in the economy is entitled, “Is Regulation to Blame for the Decline In American Entrepreneurship?,” and authored in 2018 by Professors Alexander Tabarrok and Nathan Goldschlag.[3] Tabarrok and Goldschlag, economists at George Mason University, examine whether regulation is the cause of the significant decrease in competition that the American economy has experienced over the previous three decades.
There is no doubt that the American economy is suffering from a serious decline in competition. Numerous economic indicators prove this is the case, with the most telling being the drop in rates of new startup businesses since the 1980’s. Tabarrok and Goldschlag hypothesized that there could be a link between the increase in regulation over the last three decades and the decrease in competition over the same time period. To test this hypothesis, they developed an innovative methodology that compared the level of regulation in particular industry sectors with the level of economic dynamism as measured by both business and job creation in those industry sectors.
Tabarrok and Goldschlag determined the level of regulatory stringency in each industry sector by using a dataset that surveyed the Code of Federal Regulations (CFR) for key terms including “shall,” “must,” “may not,” “prohibited,” and “required” which are indications of regulations that impose compliance obligations on regulated parties. Using classification algorithms, Tabarrok and Goldschlag were able to match text in the CFR to specific industry sectors. This resulted in a data set that produced an index of regulatory stringency by industry and year. The data set was also able to include regulatory stringency across different federal agencies.
According to Tabarrok and Goldschlag, “our regulatory stringency index shows no statistically significant effect on startups or job creation and a slightly positive effect on job destruction rates. In short, no evidence for a negative effect of regulation on dynamism.”
The leading study on the effect of regulation on the level of competition in the American economy decisively concluded that regulation has no anti-competitive effects. Given that DOJ’s comment request is predicated on the assumption that regulations result in anti-competitive effects, we strongly encourage DOJ to rescind and amend the comment request until it substantiates claims that regulations result in anti-competitive effects with rigorous, empirically sound, and credible data, and includes studies that show otherwise.
Commonly Cited “Cost” of Regulations Studies Have Been Discredited
CSS also wants to ensure that DOJ is not basing its support for potentially repealing regulations on discredited studies regarding the costs of regulations that are not independently peer-reviewed and suffer from deeply flawed methodologies. Unfortunately, as discussed below, these debunked studies continue to be cited by politicians and policymakers when asserting that regulations hurt the economy or lead to less competition. It is critical that DOJ does not rely on or cite these flawed studies to justify any policy actions taken pursuant to this comment request or associated Executive Orders.
The most thorough assessment of the flaws of the leading regulatory costs studies comes from Professor Richard Parker’s article entitled, “The Faux Scholarship Foundations of the Regulatory Rollback Movement.”[4] Parker analyzed the two leading studies claiming regulations cost the economy roughly $2 trillion dollars annually, neither of which have been peer-reviewed, and found that neither would survive peer-review due to deep and pervasive flaws in the methodology. To put it succinctly, neither study can be credibly cited as empirical evidence regarding the impact of regulation on the economy.
According to Parker:
“This Article will demonstrate that, ultimately, the ‘aggregate cost of regulation’ is at once unknown, unknowable, and unnecessary to sound regulatory policy. The studies examined in this Article do not establish that regulations are costing more jobs than they create, or reducing the U.S. Gross Domestic Product by any amount close to $2 trillion per year. They do, however, highlight the impact of an archipelago of antiregulatory advocacy groups and policy centers that regularly sponsor and issue studies that overstate the cost of regulation using methods that seem plausible on a quick read but that do not withstand close scrutiny.”[5]
Parker points to the two most influential studies that falsely claim regulations cost the economy $2 trillion dollars annually. As he explains, “The upper-bound $2.03 trillion figure almost certainly comes from a 2014 study for the National Association of Manufacturers by W. Mark Crain and Nicole Crain, which offered an estimate of $2.028 trillion. The lower bound of $1.88 trillion in the concurrent resolution almost certainly derives from an estimate of $1.885 trillion in Ten Thousand Commandments (2016), an Annual Report by Clyde Wayne Crews, Jr.”[6] Parker begins by sharing important background on both studies, stating “It turns out that both studies were sponsored by organizations with a strong financial and organizational stake in the outcome of the studies. Neither study was peer reviewed. In fact, neither study was even published in an external journal that might have provided an external filter for quality or veracity.”[7]
Regulations Can Protect the Public and Promote Competition
CSS strongly supports regulatory protections because of the benefits they provide to hardworking Americans and society more broadly, including the benefit of increasing competition in specific industry sectors by leveling the playing field for small businesses and driving innovation. As such, CSS highlights below a small subset of regulations that have benefitted competition–these examples are drawn from a recent CSS report, which is attached as an appendix. As these examples demonstrate, DOJ should be looking for ways to both adopt new regulations that strengthen competition as well as improve existing regulations that have led to more competition but which have not been updated to reflect new market conditions.
Federal Trade Commission (FTC)
As the agency charged with policing competition across the U.S. economy, the Federal Trade Commission (FTC) has taken the lead in enhancing competition by putting in place new regulations. One example is the FTC’s regulation of eyeglasses in the 1970’s. Prior to FTC regulation, optometrists and ophthalmologists would utilize a range of practices to ensure that customers who received an eye exam from them would also purchase eyeglasses from them, including refusing to provide a prescription unless the customer purchased eyeglasses from them or charging an additional fee to release the prescription.[8] This practice limited the ability of opticians to effectively compete in the market. By requiring that customers be able to utilize a prescription to obtain eyeglasses from other providers, the FTC regulation expanded the number of market participants, making the market more competitive.
Federal Communications Commission (FCC)
Regulations can also make markets more competitive by reducing switching costs, making it easier for customers to move from one producer to another, thereby driving down prices. One example is the Federal Communications Commission (FCC) regulation related to phone number portability.[9] Prior to regulation in this space, phone carriers could require individuals or businesses to change to a new phone number when they switched carriers. This was a substantial impediment to competition: the FCC noted studies suggesting that more than 80 percent of customers would be unlikely to change their carrier if it required them to abandon their phone number.[10] FCC’s rule requiring that phone carriers allow customers to keep their phone number when changing providers “promotes competition between telecommunications service providers, foster[ing] lower local telephone prices and . . . stimulat[ing] demand for telecommunications services and increase economic growth.”[11]
Conclusion
The Department of Justice’s comment request is premised on the claim that regulation hurts competition and the economy. Yet, numerous studies show the opposite–that regulation is not to blame for reduced competition, and in fact, can promote competition. Repealing regulations that protect the American people due to claims that those regulations are “anticompetitive” will hurt consumers, workers, the environment, the public’s health and safety, and much more. We oppose any efforts by DOJ to target regulatory protections for repeal based on supposed impacts to competition without also considering the original purpose of those regulations and the public benefits that would be lost if those regulations were repealed.
Sincerely,
Rachel Weintraub
Executive Director
Coalition for Sensible Safeguards
[1] Press Release, U.S. Dep’t of Justice, Justice Department Launches Anticompetitive Regulations Task Force (Mar. 27, 2025), https://www.justice.gov/opa/pr/justice-department-launches-anticompetitive-regulations-task-force.
[2]Nathan Goldschlag & Alex Tabarrok, Is Regulation to Blame for the Decline in American Entrepreneurship?, 33:93 Economic Policy 5-44 (Jan. 2018), https://doi.org/10.1093/epolic/eix019.
[3] Id.
[4] Richard Parker, The Faux Scholarship Foundations of the Regulatory Rollback Movement, 45 Ecology Law Quarterly 845 (2018), https://www.ecologylawquarterly.org/wp-content/uploads/2020/03/The-Faux-Scholarship-Foundation-of-the-Regulatory-Rollback-Movement.pdf.
[5] Id. at 845.
[6] Id. at 850.
[7] Id. at 851.
[8] Berger, Sam “Regulations are a Critical Part of a Functioning Economy,” Coalition for Sensible Safeguards, May 27, 2025, https://sensiblesafeguards.org/regulations-are-a-critical-part-of-a-functioning-economy/, citing the Federal Trade Commission, “Staff Report on Advertising of Ophthalmic Goods and Services and Proposed Trade Regulation Rule (16 CFR Part 456),” (May, 1977), https://www.ftc.gov/system/files/documents/reports/staff-report-advertising-ophthalmic-goods-services-proposed-trade-regulation-rule-16-cfr-part-456/r611003_-_staff_report_on_advertising_of_ophthalmic_goods_and_services_and_proposed_trade_regulation.pdf.
[9] Berger, Sam “Regulations are a Critical Part of a Functioning Economy,” Coalition for Sensible Safeguards, May 27, 2015, https://sensiblesafeguards.org/regulations-are-a-critical-part-of-a-functioning-economy/. The FCC initiated rulemaking in 1995 and Congress then required carriers to offer number portability consistent with FCC regulations in the Telecommunications Act of 1996. See Federal Communications Commission, “First Report and Order and Notice of Proposed Rulemaking in the Matter of Telephone Number Portability,” (July, 1996), https://transition.fcc.gov/Bureaus/Common_Carrier/Orders/1996/fcc96286.txt.
[10] Id.
[11] Id.