How Smart Is The Proposed Merger Review SMARTER Act?

On May 9, the Standard Merger and Acquisition Reviews Through Equal Rules (SMARTER) Act passed the House of Representatives by a 230-185 vote. Shortly thereafter, the Senate introduced its own version of the bill. Aimed at amending the Clayton Act, the SMARTER Act would streamline the Federal Trade Commission's merger review process and historically align the FTC and Department of Justice standards for obtaining preliminary injunctions. Similar legislation has failed before. Has the SMARTER Act's time finally arrived?

Coordinating Merger Review

Under the Clayton Act, the DOJ and the FTC share jurisdiction to review mergers for antitrust violations. Both agencies review deals to determine whether they "substantially" "lessen competition" or "tend to create a monopoly." Under a long-standing agreement between the two agencies, the DOJ and FTC jointly decide which agency will handle a given transaction based, in large part, on which agency has more experience in