AAI Says SMARTER Act Not So Smart – Antitrust Agency Enforcement Data Do Not Support the Premise of the Legislation

Today the American Antitrust Institute (AAI) issued “Antitrust Enforcement Data Shows SMARTER Act Is Not So Smart.” The brief analysis and commentary casts doubt on the wisdom of the Standard Merger and Acquisition Reviews Through Equal Rules Act (“SMARTER Act”). The proposed legislation seeks to eliminate supposedly disparate treatment of mergers handled by the DOJ and FTC by (1) preventing the FTC from ever using its administrative process to adjudicate a proposed merger, and (2) requiring the FTC to meet the DOJ’s theoretically more stringent standard for obtaining a preliminary injunction to block a merger in federal court.

After the October 7, 2015 Senate Antitrust Subcommittee hearing on the SMARTER Act, AAI reviewed workload statistics from the FTC and DOJ to test the “theory” underlying the bill. The analysis  shows that the SMARTER Act’s premise – unfairness caused by the FTC’s differently worded procedures and standards – is not supported by the data. On the contrary, the workload data demonstrate that firms that have their merger reviewed by the DOJ are more likely to have their deal closely scrutinized or challenged than firms whose mergers are reviewed by the FTC.