On the recordMay 9, 2018
This amendment makes several technical revisions to clarify that the bill does not apply to consummated mergers and other transactions. While this change marginally addresses one concern with the bill, it does nothing to change the most fundamental flaw with the bill, which is that it eliminates the Federal Trade Commission's administrative litigation authority in merger cases. As we noted during consideration of this bill in the Judiciary Committee last year, and in prior Congresses, the SMARTER Act is overbroad as currently drafted and applies to both unconsummated and consummated transactions. According to John Jacobson, a leading antitrust attorney, who served as commissioner of the Antitrust Modernization Commission, this bill could easily be ``construed as prohibiting a challenge to the consummation of any merger in administrative proceedings, even a post- merger challenge, notwithstanding the term `proposed.' '' Technical feedback by senior staff at the FTC, under both Democratic and Republican administrations, confirmed this view. While the amendment makes the useful clarification that H.R. 5645 would not apply to already consummated transactions, the bill would still eliminate the FTC's ability to use administrative litigation in proposed mergers, striking at the core of the Commission's independence and congressionally mandated design, without any evidence that such a change is warranted or desirable. As Mr.…
