On the recordMarch 23, 2016
It is a privilege to be here today to be the sponsor of the SMARTER Act. This is just good government. We have a situation now that if you want to merge your company with another company, you could go before the Federal Trade Commission or you could go before the Department of Justice. Now, you would think that the Clayton Act that governs antitrust law would say: All right. Well, we are going to get treated the same, no matter which way we go, the law is the law. But that is not how it works. A big piece of this is the procedural aspect of it. If your merger is reviewed by the Department of Justice and they have a problem with it and they need a preliminarily injunction to stop it, they go to Federal Court before a judge, as the Founding Fathers intended, the executive branch agency, and there is a dispute, and it is litigated in front of a Federal court. But if you go before the Federal Trade Commission, they could go to Federal court like the Department of Justice, but they can also go to their own court. They have got their own court with an FTC employee as the judge. Now, we have got administrative law courts that work, but they can also do both. You have got a situation that the merger could be delayed. In these business transactions, as in life, time is money. Just the threat of going through this administrative process has the effect of giving the FTC the ability to extract concessions that the DOJ wouldn't.…
