On March 7, 2007, Chairman of the Federal Trade Commission (FTC); Deborah Platt Majoras, and Assistant Attorney General of the Department of Justice’s Antitrust Division (DOJ), Thomas O. Barnett, went before the Senate Judiciary Committee to provide testimony and field questions regarding the agencies’ record of antitrust enforcement during the Bush presidency. The hearing, “Oversight of the Enforcement of the Antitrust Laws,” was the first of its kind in five years and the first since Democrats regained control of the Congress.

Seizing the opportunity, a number of senators criticized the agency heads for the apparent decline in antitrust enforcement over the past several years. Most outspoken was Senator Herbert Kohl (D-WI), chairman of the Senate Subcommittee on Antitrust Competition Policy and Consumer Rights, who accused the agencies of taking a “permissive, hands-off approach” to antitrust enforcement. Senator Kohl supported his comments by citing statistics that showed a 60 percent decline in merger investigations during the past four years and a 75 percent decline in mergers challenged, as compared to the final four years of the Clinton presidency. Senator Kohl also pointed to examples of what he deemed to be questionable non-enforcement decisions, including the Whirlpool/Maytag and AT&T/BellSouth mergers. Defending his agency’s record, Barnett responded that Senator Kohl’s statistics were misleading given the nearly 50 percent decline in merger filings since the 1990s, a trend furthered by recent hikes in merger notification thresholds. Barnett also pointed out that 16 mergers were challenged last year – the highest such number in the preceding five years.