Will Standardized Anti-Trust Laws Help Prevent Private Sector Monopolies? (H.R. 5645)

What is H.R. 5645?

(Updated January 24, 2022)

This bill — known as the SMARTER Act — would standardize procedures used by the Federal Trade Commission (FTC) and the Dept. of Justice (DOJ) when reviewing proposed mergers or acquisitions that may lessen competition or lead to monopolies. Both agencies are responsible for enforcing anti-trust laws, but the way exercise the authority under current law is different.

Specifically, the bill would harmonize the standard the FTC and DOJ must meet before a federal court can issue a preliminary injunction against a proposed merger or acquisition. It’d also direct the FTC to resolve contested mergers or acquisitions through a federal court rather than through administrative litigation.

The bill’s full title is the Standard Merger and Acquisition Reviews Through Equal Rules Act of 2018.

Argument in favor

The Federal Trade Commission and Dept. of Justice will be more effective at reviewing proposed mergers and acquisitions for antitrust violations if they use the same procedures with similar standards.

Argument opposed

There’s no need to standardize procedures used by the FTC and DOJ in reviews to determine if a merger or acquisition weakens competition or creates a monopoly.

Impact

Businesses involved in a proposed merger or acquisition; the Federal Trade Commission; and the Dept. of Justice.

Cost of H.R. 5645

A CBO cost estimate is unavailable.

Additional Info

In-Depth: This legislation was introduced by Rep. Karen Handel (R-GA) to standardize enforcement procedures for anti-trust laws between the FTC and DOJ, as members of the Judiciary Committee explained about its predecessor in the last Congress:

“Under existing law, the rules for reviewing a merger or acquisition differ depending on whether the FTC or the Justice  Department reviews the merger… One of the responsibilities of the Judiciary Committee is to ensure fairness and consistency in the enforcement of our nation’s antitrust laws. We plan to soon reintroduce the SMARTER Act to permanently reduce the disparities in the merger review process and ensure that companies face the same standards and processes regardless of whether the FTC or Justice Department reviews the merger.”

This legislation has the support of seven bipartisan cosponsors, including five Republicans and two Democrats. During the last session of Congress the House passed an identical version of this bill on a 235-171 vote.

Media:

• Republican Policy Committee