Biden calls on agencies to spur more competition with their regs

The Biden administration on Wednesday released a new requirement for agencies throughout government to think more carefully about expanding competition through their regulatory actions. 

President Biden has targeted antitrust trends in the economy as a key part of his domestic agenda and the White House said the new guidance will help enforce those efforts through an “all-of-government approach to competition.” The Office of Information and Regulatory Affairs document creates frameworks for agencies as they develop and analyze potential regulatory actions. 

OIRA noted that agencies can shape markets through their regulations and urged them to draft those rules to enhance competition. 

“Analyzing how regulations influence competition can provide insights critical to crafting policy, including how to achieve other policy goals while also increasing competition,” the White House agency said in its guidance. 

The document spelled out how agencies can determine if their regulations would have “significant effects on market structure and the competitive process.” It also provided agency employees with technical information to consider when conducting regulatory analyses. When drafting proposed rules, for example, agencies should consider modifying them to enhance interoperability so customers can easily switch from one product to another. They should also consider rules that regulate general performance to allow firms to come up with innovative solutions to meet certain requirements. 

Examples would include a regulation that requires all electric charging stations to work with all vehicles, or a rule that allows hearing aids to be sold over-the-counter so long as they meet certain safety and efficacy standards. Agencies should consider whether their forthcoming regulations grant exclusive rights to one firm or type of firm, benefit some companies but not others, create new “switching costs” for consumers or limit workers' ability to change employers. 

OIRA noted that agency officials may benefit from consulting with government experts at the Justice Department, Federal Trade Commission or their OIRA desk officers. 

Amit Narang, an expert on the regulatory system who consults with Public Citizen, said the new focus was in line with an ongoing push from the Biden administration. 

"The guidance is a welcome, and long overdue, recognition that regulation enhances competition to the benefit of consumers, workers, and the public," Narang said. "It is wise for OIRA to direct agencies to be mindful of how their regulations can benefit competition or hinder it when rolled back."

OIRA Administrator Richard Revesz, who said his agency developed the guidance with the National Economic Council, the Council of Economic Advisers, and other members of the White House Competition Council, stressed the new initiative will complement agencies’ existing efforts and policy goals. 

“When regulations make markets more competitive, they lead firms to improve product quality or lower prices, offer workers higher wages or better benefits, and develop and bring to market innovative products and services,” Revesz said. “These outcomes boost economic growth and dynamism, and increase standards of living.”

The guidance follows an executive order Biden issued in 2021 that created 72 initiatives at more than a dozen agencies to tackle “competition problems across our economy,” including through changes to federal procurement and regulations. The White House released it in conjunction with its rollout of a new initiative to further restrict “junk fees” across industries. 

At an address at the White House on Wednesday, Biden said his new guidance will inform “every federal agency on how they can promote real competition in their work.”