On Sept. 10, 2014, the House Judiciary Committee approved H.R. 5402, the Standard Merger and Acquisition Reviews Through Equal Rules (SMARTER) Act. Although the bill remains pending in the House, after Republicans achieved control of both Houses of Congress for the first time in eight years this November, commentators are predicting that the SMARTER Act is likely to pass.1
The SMARTER Act would harmonize the Federal Trade Commission’s (FTC) authority to review and challenge mergers with that exercised by the U.S. Department of Justice (collectively, the agencies) in three key respects.2 First, it would subject final judgments in FTC merger cases to judicial scrutiny to ensure that decrees are in the public interest, as is required for the Justice Department. Second, it would unify the agencies’ preliminary injunction standards. Finally, it would require the FTC to adjudicate contested mergers in federal court rather than its Part III administrative review.
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