Sens. Lee, Hatch, Tillis, and Grassley Introduce SMARTER Act

May 15, 2018

WASHINGTON – Sens. Mike Lee (R-UT), Orrin Hatch (R-UT), Thom Tillis (R-NC), and Chuck Grassley (R-IA) introduced the Standard Merger and Acquisition Reviews Through Equal Rules Act, or SMARTER Act, Tuesday, a bill that would require the Federal Trade Commission to go through the same procedures that the Department of Justice must go through when enforcing antitrust law, and would require the Federal Communications Commission to issue merger review decisions expeditiously.

“The only people that benefit from uncertainty in antitrust law are antitrust lawyers,” Sen. Lee said. “Both businesses and consumers deserve clarity and certainty when it comes to federal antitrust law enforcement and the SMARTER Act would create a simpler and more equal system.”

“This is an important issue for the business community and for all Americans,” Sen. Hatch said. “There is no good reason for the Federal Trade Commission and the Department of Justice to apply different standards in enforcing our nation’s antitrust laws. Businesses seeking to merge deserve consistent treatment without regard to which agency decides to review the merger. I look forward to working with Senator Lee to move this legislation forward to bring much-needed reforms to the merger review process.”

“The Federal Trade Commission and the Department of Justice currently unnecessarily apply different procedures and standards for reviewing proposed mergers,” said Sen. Tillis. “This commonsense legislation will streamline the enforcement of our federal antitrust laws by creating a system of consistency that will benefit consumers and businesses.”

The Department of Justice and the Federal Trade Commission share concurrent jurisdiction to review proposed mergers for compliance with the antitrust laws but it is not always clear in advance which agency will review a particular merger.

Although the two antitrust agencies apply the same substantive law to the mergers they review, their procedures differ in important ways.

The SMARTER Act fixes this problem by requiring the Commission to satisfy the same standards that DOJ must meet in order to obtain a preliminary injunction to block a merger and requiring the Commission to litigate the merits of contested merger cases in federal court under the Clayton Act—just as DOJ does—rather than before its own administrative tribunals.

Separately, certain mergers also require approval of the Federal Communications Commission. However, the Federal Communications Commission’s merger review procedures create an open-ended process that fuels uncertainty and is potentially insulated from judicial review. The SMARTER Act fixes this problem by requiring the Commission to issue a decision within 180 days of receiving a completed merger application.