Director of the Justice Department's Procurement Collusion Strike Force Daniel Glad Delivers Remarks to the Seventh Annual White-Collar Criminal Forum at the University of Richmond Law School
Remarks as Prepared for Delivery
Good morning and thank you for that kind introduction. This conference has been an antitrust policy highlight for many years. In fact, at the Third Annual Georgetown Antitrust Conference in 2009, the FTC and DOJ announced the public comment process that led to the 2010 Horizontal Merger Guidelines.
A lot has changed in those 14 years. While I’m sure the audience here at Georgetown had many thoughts, only 44 commenters wrote to the agencies in response to that initial call for comments. The broader public showed little interest in increasing antitrust enforcement. Agency staffing levels were continuing a decades-long decline.
Today, we are working to revise the merger guidelines against a very different landscape.
Since 2010, we have heard growing concerns about the level of competition in key sectors of the American economy. Waves of academic studies document how the public loses out when mergers lessen competition in industries across our economy.
The problem is not limited to consumer markets. At the same time, a robust literature has emerged documenting how workers lose out from too little labor market competition. We have the good fortune to have Ioana Marinescu at the division alongside heroic attorneys and EAG economists, helping revitalize our labor market efforts including in the merger guidelines. The health of our economy depends on the ability of workers to get competitive wages and terms for their efforts.
The biggest change since 2009, though, has been the public’s awareness of consolidation and the resulting harms. Numbers in regressions are one thing, but real harms to real people are reawakening Americans to the importance of antitrust enforcement.
We are hearing that loud and clear in the public comment process. Our initial request for comment on the guidelines generated over 5,000 responses from the public. And yesterday, the comment period on the draft closed with over 3,000 comments submitted on Regulations.gov and thousands more e-mailed to the agencies. The public comments overwhelmingly call for vigorous merger enforcement.
For example, we received several hundred comments from writers and other creators concerned about the impacts of media-industry consolidation on their profession. We have so many comments like the one from a television writer who told us that “the more the media companies merge, the fewer jobs are available for writers, and less compensation is offered.”
We hear a startlingly similar concern from doctors, nurses and other healthcare workers who report that consolidation has made it harder to do what they love and treat patients with care and flexibility. One ICU nurse from California said what so many in her profession did. She worked for a community hospital that had “remarkable care” for patients. But after a merger, she says nursing ratios dropped, vacation time was stripped from nurses and practice expectations became “unsafe.” Her comment urges the department to “prevent further mergers that limit choice for consumers, especially in healthcare,” and to “enforce the antitrust laws already passed.”
I want the writers, nurses, farmers, concerned citizens and all the other public commenters to know — the Justice Department hears your concerns. Economic harm and suffering are not just triangles and curves, they are real human consequences for real people. Citizens are speaking up and we are listening. Our litmus test for success is whether we are serving the needs of the American people. They are now watching too and they are demanding that we do more and that we do better to protect a competitive economy.
For that reason, we will read all the comments, from lay people and experts alike, with care. We will assess suggested revisions with an open mind.
As we work to finalize the guidelines, we will continue to apply an important limiting principle. We are law enforcers, and the law limits our discretion. It is up to Congress to write the antitrust laws, and the courts to interpret the laws, and it is our job at the Justice Department to enforce the laws.
That is how we think about enforcement and think about the guidelines in an era of renewed interest. The Antitrust Division should seek to vigorously protect competition with appropriate use of its legal authority.
Readers should understand that the guidelines are not the law. The Justice Department cannot write rules and regulations that change the Clayton Act and the binding rights and obligations created by the law. For that reason, we should not invent safe harbors that ignore the will of Congress or constrain our ability to analyze the facts. Nor is it our job to opine on which of the many mergers that are not illegal are good, and why.
Likewise, when we explain situations we tend to think might suggest the potential for a violation, we must also acknowledge that in each case we would review other pertinent factors to reach the appropriate decision. The draft Merger Guidelines already reflect these important limitations.
Our merger guidelines are still important, however. For example, they provide transparency to merging parties and impacted citizens. When we explain frameworks we most frequently apply, the agencies empower the public to engage with us. Maybe you or your clients disagree with the law or economics as we see them, but the process will work better if you know how we are thinking as we review a deal.
The guidelines also foster consistency and predictability, while at the same time preserving the flexibility Congress set forth in the Clayton Act. The DOJ and FTC are two separate agencies that each have hundreds of professionals. While the guidelines cannot dictate where the analysis will end in any given case, they can at least help investigations across the agencies start in the same place.
Our guidelines also shape the language that the agencies use to talk about mergers in public and in the courts. In an era when the broader public is interested in merger review, and when we are litigating more and more often, the guidelines should guide us to build cases that invite and enable the public.
So what comes next? We are thrilled to have an overwhelming comment response to our draft guidelines. We will work as quickly as we can so that our final guidelines can realize the goals of transparency and predictability.
As we undertake that revision and continue to review mergers, I will have three core principles in mind.
First, we need to ask how competition presents itself in the context of each merger. Our merger analysis must reflect market realities. The inescapable reality of modern markets is that competition plays out in many ways, across many different dimensions.
At times, we have fallen into the trap of assuming a standard model of competition for merger review. Static price competition is incredibly important, and we will continue to fight for consumers to benefit from competition through lower prices and increased quality. But we have so much more to protect as well.
Competition varies widely across industries and over time, and the nature of competition may be different from one merger to another. For example, so-called zero-price markets are increasingly important, with consumers exchanging their personal data and their time. Competition for platforms, on platforms and to displace platforms are all critical. Labor markets ensure competition for workers’ wages. And new forms of competition are frequently emerging, from generative AI to algorithmic pricing.
That is why the draft guidelines begin by asking “how does competition present itself in this market…”?
That emphasis, on competition, follows through the rest of the document. Each of the prima facie frameworks in Section II focuses on competition. The rebuttal section uses the same approach, recasting the analysis generally in terms of effects on competition. The draft contains critical aspects of the economic analysis that are applicable to both of those sections. Focusing on competition, as Congress asked us to do, will better enable us to fit our analysis to the facts.
That brings me to my second fundamental point. What is the right question to ask about competition? I believe the Clayton Act presents that question. The Clayton Act directs us to ask whether the effect of a merger “may be substantially to lessen competition or to tend to create a monopoly.” It asks us to assess the risk a merger poses to competition. This approach vindicates Congress’ policy judgment that merger enforcement should be more risk-averse than a Sherman Act analysis.
I think a lot about the kinds of problems articulated by that ICU nurse. Does the Clayton Act reach harm to competition that results in overworked and under supported nurses even when we cannot point to a higher price?
I recently sat by as a loved one received major life-saving surgery from dedicated and attentive professionals in a community hospital. The level of care and attention that dedicated nurses, professionals and doctors were providing to their patients was rare — if not unprecedented — by today’s standards. I am eternally grateful. As I watched that, I was absolutely convinced that quality of care and attention is worthy of protection, even when it is difficult, if not impossible, to attach to it a monetary value. We must ask ourselves, is antitrust really working for the public when we reduce human life to a grayed-out triangle? The product is so much more than that, and people are so much more. Competition benefits them both.
Competition was difficult to measure in 1914, but Congress still thought it important to prevent threats to competition in their incipiency. Even more today than when the law was strengthened in 1950, competition can be an unpredictable process. It is the beauty of a rival waking up each morning not knowing what its competitor will do next. Not knowing how much a competitor will pay their nurses, or what new feature an adjacent firm will unveil.
That uncertainty drives the innovation and opportunity that make our economy tick and delivers ever-increasing rewards to consumers and workers alike. As enforcers in Washington, D.C., how can we measure what we hope the rivals in the competitive process themselves could not predict?
That is why the Clayton Act prohibits all mergers where the effect “may be” substantially to lessen competition or to tend to create a monopoly. In any given transaction, we should use the best analytical and evidentiary tools available to help us identify a risk of harm.
Importantly, the risk assessment framework applies to both the evaluation of the agencies’ prima facie case and to rebuttal evidence. As the draft guidelines explain, we first ask whether facts show that the effect of the merger “may be” to substantially lessen competition. Then on rebuttal, we take seriously other evidence that demonstrates the merger does not, in fact, “threaten” to lessen competition.
I have to acknowledge on this point the incredible work that Susan Athey, Aviv Nevo and the staff of EAG and BE did evolving the draft guidelines to better reflect a toolkit that maps to the Clayton’s Act’s risk assessment framework and invites the development and use of state of the art analytical methods. As the in-depth discussion of economic tools in the draft guidelines demonstrates, this lens opens up the analysis to better use the full array of modern economic and analytical tools to get the right answers in our merger reviews. Indeed, the draft guidelines have extended and evolved the economic toolkit, which serves as a cross-cutting foundation of our approach to analyzing competition as it presents itself in each merger.
Third, let me briefly address how we do that. Merger analysis is not a one-size-fits-all exercise. In different situations, different tools will shine the clearest light on a merger’s risk of harming competition.
Three important examples are direct evidence, empirical evidence and market structure. The draft guidelines describe these important tools in detail.
In some cases, we have direct evidence. Documents and testimony can reveal that merging parties live rent-free in each other’s heads. What more do we need to know than that a merger will eliminate rivalry that has driven lower prices, better service or innovation in the past? If the CEO said a merger would eliminate a nascent threat, the Clayton Act says we should listen and pay attention to the “man behind the curtain.”
In other cases, red flags may emerge from the data. The draft merger guidelines add econometric analysis to the “sources of evidence” section from prior guidelines. As they explain, analytical work can help us understand competitive dynamics. That’s true even if the data or modeling techniques don’t report results as a specific price effect prediction. As I have been saying, it’s time to modernize, and that means relying on the full set of available empirical and evidentiary tools that help us understand how competition plays out.
Ask yourselves this question: in 2023 should we use static models to model the behavior of “rational consumers” or should we use cognitive science, behavioral economics and the full range of analytical tools and evidence to understand the idiosyncratic behavior of humans? The answer to that question should be obvious.
Another useful tool remains looking at how a merger will change the structure of the market. The structural presumption tells us something about the risk a merger poses to competition. When a merger further concentrates a highly concentrated market, we should be concerned it may eliminate important competition between firms and create a risk of oligopoly coordination. As the draft guidelines say, the greater the concentration, the greater the risk. The courts say that as well, again and again.
I should say that I have heard concerns from some members of the defense bar that the approach to the structural presumption in the draft guidelines is inconsistent with modern district court cases. They can rest assured that, even at 60 years old, Philadelphia National Bank is alive and well. In fact, since 2010, the federal courts have treated the structural presumption as a key feature in 23 of the 25 agency horizontal merger cases they decided. As the Third Circuit reiterated in the Hackensack case just last year, if the structural presumption is met, a plaintiff “need[s] no further evidence to…establish [a] prima facie case.” Like it or not, courts are clear that the structural presumption is one of many paths — but not the only path — for the government to establish its prima facie case. This has been the law for decades and standard practice at the Division across administrations of both parties since the Supreme Court decided Philadelphia National Bank.
As you know from the draft guidelines, those are just a few of the tools the agencies most often use to identify a risk of harm to competition.
We also need to be clear-eyed that none of these tools can perfectly predict or measure the complex and dynamic economy in which we live. The tools of merger review are signals of potential danger, not photos of the future or a crystal ball. This means that we must construct our investigation to the probabilistic and prophylactic standard that animates Section 7 of the Clayton Act.
That also means that in many instances we cannot map competition with enough precision to engage in reconstructive surgery to restore competition. As many of you know, for nearly two years, the Antitrust Division has been careful not to pursue incomplete or uncertain remedies that ask the public to shoulder the risk of failure. Patchwork quilts of carve-out divestitures, complex merger consent decrees involving extensive entanglements and ongoing dependence between the merged firm and the divestiture buyer often fail to protect the harm to competition from an otherwise anticompetitive merger. Simply put, we need the appropriate level of confidence that a remedy will be sufficient to address the risk of harm to competition presented by the underlying deal.
I am pleased to report that our remedies policy is working. We are seeing dramatically fewer illegal mergers, which benefits the public, conserves valuable resources and provides greater clarity and predictability to the business community.
We continue to see thousands of mergers per year. The difference now is that fewer deals present violations of the law.
I would like to conclude my remarks with a couple commitments. First, we are committed to carefully reviewing the comments on the draft as we work to issue the final guidelines.
Second, even as that happens, we remain deeply committed to promoting competition in the American economy. We are committed to protecting consumers from the harms of higher prices, lower quality, reduced choice, lower standards in healthcare and diminished innovation that result from lessened competition. We are similarly committed to protecting workers from the harms that result when they face too little competition for their labor. And we are committed to promoting, for all Americans, a dynamic and vibrant economy in which competitive markets drive innovation and opportunity. Those are core ingredients of a thriving democracy that we are duty bound to protect. It is the honor of my life to do that work with so many talented public servants at the Antitrust Division. They are American heroes and worthy of our gratitude. Thank you.
 See Christine A. Varney, Assistant Attorney General, Antitrust Division, U.S. Dep’t of Justice, An Update on the Review of the Horizontal Merger Guidelines, Remarks as Prepared for the Horizontal Merger Guidelines Review Project’s Final Workshop (Jan. 26, 2010).
 For example, Nate Miller and Matthew Weinberg’s work shows how consumers pay more for beer as a result of a merger cleared by the Division. See Nathan Miller & Matthew C. Weinberg, Understanding the Price Effects of the MillerCoors Joint Venture, 85 Econometrica 1763 (2017). Leemore Dafny and coauthors have found harms from consolidation in health insurance, a critical sector of the economy. Leemore Dafny et al., Paying a Premium on Your Premium? Consolidation in the US Health Insurance Industry, 102 Am. Econ. Rev. 1161 (2012). And the recent work of Vivek Bhattyachara and his coauthors suggests our enforcement policy has been too permissive, permitting mergers to raise prices across a range of retail markets. Vivek Bhattyachara et al., Merger Effects and Antitrust Enforcement: Evidence from U.S. Retail, NBER Working Paper No. 31223 (2023) (finding that U.S. retail mergers on average increased prices and decreased transacted quantities). See John E. Kwoka, Jr., Mergers, Merger Control, and Remedies: A Retrospective Analysis of U.S. Policy (Cambridge, MA: The MIT Press, 2015) (finding that more than 80 percent of studied mergers resulted in price increases); Orley Ashenfelter et al., Did Robert Bork Underestimate the Competitive Impact of Mergers? Evidence from Consummated Mergers, 57 J. Law And Econ. 67 (2014) (concluding that 36 of the 49 compiled studies resulted in higher prices). See also Ryan A. Decker et al., Changing Business Dynamism and Productivity: Shocks Versus Responsiveness. 110 AM. ECON. REV. 3952 (2020); Germán Gutiérrez & Thomas Philippon, The Failure of Free Entry, NBER Working Paper No. 26001 (2019); Jan De Loecker et al., The Rise of Market Power and the Macroeconomic Implications, 135 Q.J. Econ. 561 (2020).
 See Elena Prager & Matt Schmitt, Employer Consolidation and Wages: Evidence from Hospitals, 111 AM. ECON. REV. 397 (2021); see also José Azar et al., Labor Market Concentration, 57 J. Hum. Res. S167 (2022); David Berger et al., Labor Market Power, 112 Am. Econ. Rev. 1147 (2022).
 Comment from Hanna McIntosh, FTC-2023-0043-0717 (Aug. 15, 2023); see also Comment from Jon Wolf, FTC-2023-0043-0572 (Aug. 8, 2023) (“I am a member of the Directors Guild of America and I strongly support the FTC investigating recent and future mergers in the entertainment industry. As entertainment firms consolidate, they routinely demolish individual development departments, destroying jobs and diminishing the opportunities for creatives.”).
 Comment from Gale Galarza, FTC-2023-0043-1034 (Aug. 20, 2023) (former ICU nurse detailing the harms resulting from hospital system merger and urging the Agencies to “prevent further mergers that limit choice for consumers, especially in healthcare.”); see also Comment from Elizabeth Slattery, FTC-2023-0043-0551 (Aug. 4, 2023) (physician whose “medical practice crumbled” as a result of merger and further consolidation in the healthcare industry).
 See Gen. Elec. Co. v. E.P.A., 290 F.3d 377, 383 (D.C. Cir. 2002) (“if the language of the document is such that private parties can rely on it as a norm or safe harbor by which to shape their actions, it can be binding as a practical matter.”) (internal citation omitted); see also Ctr. for Auto Safety v. Nat’l Highway Traffic Safety Admin., 452 F.3d 798, 809 (D.C. Cir. 2006) (“There is also nothing to indicate that automakers can rely on the guidelines as ‘a norm or safe harbor by which to shape their actions,’ which might suggest that the guidelines are binding as a practical matter.”) (quoting Gen. Elec., 290 F.3d at 383).
 U.S. Dep’t Justice & Fed. Trade Comm’n, 2023 Draft Merger Guidelines at 5 (July 19, 2023) (“These Guidelines create no independent rights or obligations and do not limit the discretion of the Agencies or their staff in any way. . . . The Agencies assess any relevant and meaningful evidence to evaluate whether the effect of a merger may be substantially to lessen competition or to tend to create a monopoly. Merger review is ultimately a fact-specific exercise. The Agencies follow the facts in analyzing mergers, as they do in other areas of law enforcement.”).
 See Cass R. Sunstein, Valuing Facebook, 4 Behavioral Pub. Policy 370 (2019); John M. Newman, Antitrust in Zero-Price Markets: Foundations, 164 U. Penn. L. Rev. 149 (2015).
 See Susan Athey & Fiona Scott Morton, Platform Annexation, 84 Antitrust L.J. 677 (2022); UK Competition & Mkts. Auth., Online Platforms and Digital Advertising: Market Study Final Report (Jul. 1, 2020).
 See Ioana Marinescu & Herb Hovenkamp, Anticompetitive Mergers in Labor Markets, 94 Ind. L.J. 1031 (2019); Suresh Naidu, Eric A. Posner & Glen Weyl, Antitrust Remedies for Labor Market Power, 132 Harvard L. Rev. 536 (2018).
 See Fed. Trade Comm’n, Generative AI Raises Competition Concerns (June 29, 2023); Am. Bar. Assn., Artificial intelligence & Machine learning: Emerging Legal and Self-Regulatory Considerations (2021).
 See Brown Shoe Co. v. United States, 370 U.S. 294, 318 n. 33 (“The Report of the House Judiciary Committee on H.R. 515 recommended the adoption of tests more stringent than those in the Sherman Act.”) (citing 15 U.S.C.A. ss 1—7, 15 note. H.R.Rep. No. 596, 80th Cong., 1st Sess. 7); id. at 318 n. 32 (‘The intent here * * * is to cope with monopolistic tendencies in their incipiency and well before they have attained such effects as would justify a Sherman Act proceeding.’) (quoting S.Rep. No. 1775, 81st Cong., 2d Sess. 4—5, U.S.Code Cong. and Adm.News, 1950, p. 4296); United States v. AT&T, 916 F.3d 1029 (D.C. Cir. 2019) (citing Brown Shoe on this point and explaining that the Clayton Act prohibits “incipient monopolies and trade restraints outside the scope of the Sherman Act…[t]herefore, Section 7 applies a much more stringent test than does the rule-of-reason analysis under Section 1 of the Sherman Act.”). See also Peter C. Carstensen & Robert H. Lande, The Merger Incipiency Doctrine and the Importance of “Redundant” Competitors, 2018 Wisc. L. Rev. 783 (2018); Richard M. Steurer, Incipiency, 31 Loy. Consumer L. Rev. 155 (2018); Robert H. Lande, Resurrecting Incipiency: From Von’s Grocery to Consumer Choice, 69 Antitrust L.J. 875 (2001).
 See Eric A. Posner, Market Power, Not Consumer Welfare: A Return to the Foundations of Merger Law (May 30, 2023); Carl Shapiro, Protecting Competition in the American Economy: Merger Control, Tech Titans, Labor Markets, 33 J. Econ. Perspectives 69 (2019); Steven C. Salop, Invigorating Vertical Merger Enforcement, 127 Yale L.J. 1742 (2018).
 U.S. Dep’t Justice & Fed. Trade Comm’n, 2023 Draft Merger Guidelines at 31 (July 19, 2023) (“Supreme Court precedent also examines whether ‘other pertinent factors’ presented by the merging parties nonetheless ‘mandate a conclusion that no substantial lessening of competition [is] threatened by the acquisition.’”) (citation omitted).
 See C. Scott Hemphill & Tim Wu, Nascent Competitors, 168 U. Penn. L. Rev. 1879, 1904 (“When the parties say something specific and detailed about their anticompetitive plan, we should believe them. . . . [A] firm’s broader pattern of acquiring nascent competitors sheds light on its intent in making each acquisition. Such evidence might be reinforced by proof of an internal program to identify rising competitors that matches the firm's completed and attempted acquisitions.”).
 The Wizard of oz (Metro-Goldwyn-Mayer 1939).
 Fed. Trade Comm'n v. Penn State Hershey Med. Ctr., 838 F.3d 327, 347 (3d Cir. 2016) (acknowledging that market structure is a significant and standalone indicator of illegality in the absence of rebuttal); United States v. Bertelsmann SE & Co. KGaA, No. CV 21-2886-FYP, 2022 WL 16949715, at *22 (D.D.C. Nov. 15, 2022) (same); United States v. UnitedHealth Grp. Inc., 630 F. Supp. 3d 118, 134 (D.D.C. 2022) (same); Fed. Trade Comm'n v. Hackensack Meridian Health, Inc., No. CV 20-18140, 2021 WL 4145062, at *20 (D.N.J. Aug. 4, 2021), aff'd, 30 F.4th 160 (3d Cir. 2022) (same); In re AMR Corp., 625 B.R. 215, 251 (Bankr. S.D.N.Y. 2021), aff'd, No. 22-901, 2023 WL 2563897 (2d Cir. Mar. 20, 2023) (same); New York v. Deutsche Telekom AG, 439 F. Supp. 3d 179, 206 (S.D.N.Y. 2020) (same); Fed. Trade Comm'n v. Peabody Energy Corp., 492 F. Supp. 3d 865, 903 (E.D. Mo. 2020) (same); United States v. Sabre Corp., 452 F. Supp. 3d 97, 135 (D. Del. 2020), vacated on other grounds, No. 20-1767, 2020 WL 4915824 (3d Cir. July 20, 2020) (same); Fed. Trade Comm'n v. RAG-Stiftung, 436 F. Supp. 3d 278, 310 (D.D.C. 2020) (same); Fed. Trade Comm'n v. Sanford Health, Sanford Bismarck, No. 1:17-CV-133, 2017 WL 10810016, at *12 (D.N.D. Dec. 15, 2017), aff'd sub nom. Fed. Trade Comm'n v. Sanford Health, 926 F.3d 959 (8th Cir. 2019) (same); Fed. Trade Comm'n v. Tronox Ltd., 332 F. Supp. 3d 187, 198 (D.D.C. 2018) (same); Fed. Trade Comm'n v. Wilh. Wilhelmsen Holding ASA, 341 F. Supp. 3d 27, 47 (D.D.C. 2018) (same); Fed. Trade Comm'n v. Advoc. Health Care, No. 15 C 11473, 2017 WL 1022015, at *7 (N.D. Ill. Mar. 16, 2017) (same); United States v. Aetna Inc., 240 F. Supp. 3d 1, 43 (D.D.C. 2017) (same); United States v. Anthem, Inc., 236 F. Supp. 3d 171, 256-257 (D.D.C. 2017), aff'd, 855 F.3d 345 (D.C. Cir. 2017) (same); United States v. Energy Sols., Inc., 265 F. Supp. 3d 415, 441–42 (D. Del. 2017) (same); Fed. Trade Comm'n v. Staples, Inc., 190 F. Supp. 3d 100, 131 (D.D.C. 2016) (same); United States v. Trib. Publ'g Co., No. CV1601822ABPJWX, 2016 WL 2989488, at *4-5 (C.D. Cal. Mar. 18, 2016) (same); Saint Alphonsus Med. Ctr. - Nampa, Inc. v. St. Luke's Health Sys., Ltd., No. 1:12-CV-00560-BLW, 2014 WL 407446, at *21 (D. Idaho Jan. 24, 2014), aff'd, 778 F.3d 775 (9th Cir. 2015) (same); Fed. Trade Comm'n v. Sysco Corp., 113 F. Supp. 3d 1, 55 (D.D.C. 2015) (same); United States v. Bazaarvoice, Inc., No. 13-CV-00133-WHO, 2014 WL 203966, at *64-65 (N.D. Cal. Jan. 8, 2014) (same); Fed. Trade Comm'n v. OSF Healthcare Sys., 852 F. Supp. 2d 1069, 1082 (N.D. Ill. 2012) (same); United States v. H&R Block, Inc., 833 F. Supp. 2d 36, 72 (D.D.C. 2011) (same).
 Fed. Trade Comm'n v. Hackensack Meridian Health, Inc., 30 F.4th 160, 173 (3d Cir. 2022).