January 15, 2009 / 3:55 PM / 10 years ago

Elhauge and Leibowitz likely Obama antitrust picks

WASHINGTON (Reuters) - Harvard law professor Einer Elhauge and Federal Trade Commissioner Jon Leibowitz are U.S. President-elect Barack Obama’s likely choices for the government’s top antitrust jobs, according to antitrust sources who have been following the matter.

Leibowitz, a Democratic commissioner with broad Capitol Hill experience, is expected to be named to head the FTC, at first in an acting capacity, the sources said. Commissioner William Kovacic, a Republican, now holds that job.

The five-person FTC also has an open seat.

Elhauge, who has advised Obama on legal issues, is expected to be chosen to head the Justice Department’s antitrust division, which under President George W. Bush was accused of failing to enforce merger laws. In particular, its 2008 decision to approve the merger of XM and Sirius, the only two U.S. satellite radio companies, raised eyebrows.

The FTC and the U.S. Justice Department share responsibility for reviewing corporate mergers and enforcing other antitrust laws.

Both Leibowitz and Elhauge declined to comment.

In addition to Elhauge, three other people are on a short list for the post of assistant attorney general for antitrust: Jan McDavid of law firm Hogan and Hartson; Justice Department antitrust division veteran Douglas Melamed, now of law firm WilmerHale; and former FTC official William Baer, now of law firm Arnold and Porter LLP, according to Washington antitrust sources.

But expectations from a year ago that an Obama administration would bring tougher antitrust enforcement have diminished, at least partly because of a reeling U.S. economy. U.S. antitrust enforcers tend to not oppose deals when one of the parties is in danger of going out of business.

Evan Stewart of law firm Zuckerman Spaeder LLP said he expected enforcers to focus on price fixing and monopoly behavior.

“Irrespective of personalities, I think that antitrust policy beyond basic bread-and-butter type enforcement issues is going to be a low priority given the dire economic situation we find ourselves in,” he added.

But once credit loosens up, companies facing stiff competition in a weak economy will seek to buy up rivals, said Albert Foer, president of the American Antitrust Institute.

“At some point you will see an awakening of (mergers and acquisitions),” Foer said. “The Justice Department has been very favorably disposed toward monopoly (and) has not been terribly active on the merger front.”

Elhauge’s lack of Washington experience would be easily overcome, he argued.

“It’s not a highly political job,” said Foer. But he added: “He’ll need some people around him to compensate for the absence of real political knowledge.”

Elhauge teaches at Harvard Law School and is director of the Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics. He was born in New York shortly after his parents emigrated from Argentina and once clerked for former Justice William Brennan on the U.S. Supreme Court.

Leibowitz, who has been on the FTC since 2004, was the Democratic chief counsel for the U.S. Senate Antitrust Subcommittee from 1997 to 2000. In another stint on Capitol Hill, he was chief counsel to Sen. Herb Kohl, a Wisconsin Democrat and the top antitrust voice in Congress.

Reporting by Diane Bartz; Editing by Lisa Von Ahn

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