Merger Policy: Smart Remarks Should Spur SMARTER Bill

The Federal Trade Commission’s Chairman has spoken. Congress should listen.

In recent remarks, Chairman Ferguson asserted that the Commission should bring merger challenges directly in federal court, rather than before its own administrative law judges. He explained that "we ought to just litigate this in federal court, both to avoid the constitutional challenges every time you bring a merger case ... and to align with [DOJ].” Emphasizing the constitutional concerns, Ferguson said that "No man ought to sit in judgment of his own case, that is axiomatic of the Anglo-American system of law." He’s right – particularly after the abuses of the prior administration, court challenges would improve fairness, transparency, and credibility in antitrust enforcement.

Now, Congress should codify this principle by enacting the Standard Merger and Acquisition Reviews Through Equal Rules Act, or SMARTER Act. Introduced in prior congresses, the SMARTER Act would simply require the FTC to follow the same enforcement procedures as the DOJ, thereby treating all businesses the same. As Senator Mike Lee has states, the bill would "restore fairness and predictability to the merger review process." The bill also resolves the constitutional problem, inherent in the current system, whereby an FTC commissioner votes out a complaint and then later serves as an appellate judge in the case, after proceedings before an Administrative Law Judge. The FTC should not act as the prosecutor, judge, jury, and executioner in its administrative court.

The Chamber has long supported the SMARTER Act as a way to bring consistency to the merger review process. Current law does not determine whether the DOJ or FTC reviews a merger. Merging parties should not be subject to two different processes that have the potential to generate different outcomes. The SMARTER Act would not change substantive review standards; instead, it would ensure that deals receive the same process regardless of the reviewing agency.

Chairman Ferguson's remarks represent a pivotal moment in antitrust enforcement. Congress should seize this opportunity to enact the SMARTER Act and ensure that antitrust enforcement is guided by principles of due process, transparency, and equal treatment under the law. By doing so, lawmakers can strengthen the foundation of America's competitive economy and reaffirm their commitment to the rule of law.

About the author

Sean Heather

Sean Heather is Senior Vice President for International Regulatory Affairs and Antitrust.

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