Sens. Lee Tillis Grassley Introduce SMARTER Antirust Reform

October 27, 2020

WASHINGTON – Sens. Mike Lee (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, Monday, 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.

“As I’ve said before, 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.”

“Our antitrust laws are in place to protect consumers and promote competition. We ought to be consistent when determining whether proposed mergers meet these goals, regardless of the agency conducting the review. Our legislation creates a more uniform standard for the Justice Department and the Federal Trade Commission to ensure greater fairness and simplicity when reviewing proposed mergers and their impacts on consumers,” Grassley said.

“The Federal Trade Commission and the Department of Justice unnecessarily apply different procedures and standards for reviewing proposed mergers,” said Senator 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. This invites regulatory mischief from both sides of the aisle that only leads to an imbalance in the implementation of regulatory policy. The current process results in an inconsistent merger review process that not only harms the businesses seeking to complete a transaction in a timely manner, but it also hurts workers and consumers alike. The SMARTER Act fixes this problem by requiring the Commission to issue a decision within 180 days of receiving a completed merger application. The merger review process should not invite Congress or a regulatory agency to put a thumb on the scale of a particular transaction, but instead it should enable a fair and timely system that affords due process.