[Congressional Record Volume 164, Number 75 (Wednesday, May 9, 2018)]
[House]
[Pages H3851-H3857]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                              {time}  1345
STANDARD MERGER AND ACQUISITION REVIEWS THROUGH EQUAL RULES ACT OF 2018

  Mr. GOODLATTE. Mr. Speaker, pursuant to House Resolution 872, I call 
up the bill (H.R. 5645) to amend the Clayton Act and the Federal Trade 
Commission Act to provide that the Federal Trade Commission shall 
exercise authority with respect to mergers only under the Clayton Act 
and only in the same procedural manner as the Attorney General 
exercises such authority, and ask for its immediate consideration.
  The Clerk read the title of the bill.
  The SPEAKER pro tempore. Pursuant to House Resolution 872, the bill 
is considered read.
  The text of the bill is as follows:

                               H.R. 5645

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Standard Merger and 
     Acquisition Reviews Through Equal Rules Act of 2018''.

     SEC. 2. AMENDMENTS TO THE CLAYTON ACT.

       The Clayton Act (15 U.S.C. 12 et seq.) is amended--
       (1) by striking section 4F and inserting the following:

     ``SEC. 4F. ACTIONS BY ATTORNEY GENERAL OF THE UNITED STATES 
                   OR THE FEDERAL TRADE COMMISSION.

       ``(a) Whenever the Attorney General of the United States 
     has brought an action under the antitrust laws or the Federal 
     Trade Commission has brought an action under section 7, and 
     the Attorney General or Federal Trade Commission, as 
     applicable, has reason to believe that any State attorney 
     general would be entitled to bring an action under this Act 
     based substantially on the same alleged violation of the 
     antitrust laws or section 7, the Attorney General or Federal 
     Trade Commission, as applicable, shall promptly give written 
     notification thereof to such State attorney general.
       ``(b) To assist a State attorney general in evaluating the 
     notice described in subsection (a) or in bringing any action 
     under this Act, the Attorney General of the United States or 
     Federal Trade Commission, as applicable, shall, upon request 
     by such State attorney general, make available to the State 
     attorney general, to the extent permitted by law, any 
     investigative files or other materials which are or may be 
     relevant or material to the actual or potential cause of 
     action under this Act.'';
       (2) in section 5--
       (A) in subsection (a) by inserting ``(including a 
     proceeding brought by the Federal Trade Commission with 
     respect to a violation of section 7)'' after ``United States 
     under the antitrust laws''; and
       (B) in subsection (i) by inserting ``(including a 
     proceeding instituted by the Federal Trade Commission with 
     respect to a violation of section 7)'' after ``antitrust 
     laws'';
       (3) in section 11, by adding at the end the following:
       ``(m)(1) Except as provided in paragraph (2), in enforcing 
     compliance with section 7, the Federal Trade Commission shall 
     enforce compliance with that section in the same manner as 
     the Attorney General in accordance with section 15.
       ``(2) If the Federal Trade Commission approves an agreement 
     with the parties to the transaction that contains a consent 
     order with respect to a violation of section 7, the 
     Commission shall enforce compliance with that section in 
     accordance with this section.'';
       (4) in section 13, by inserting ``(including a suit, 
     action, or proceeding brought by the Federal Trade Commission 
     with respect to a violation of section 7)'' before 
     ``subpoenas''; and
       (5) in section 15, by inserting ``and the duty of the 
     Federal Trade Commission with respect to a violation of 
     section 7,'' after ``General,''.

     SEC. 3. AMENDMENTS TO THE FEDERAL TRADE COMMISSION ACT.

       The Federal Trade Commission Act (15 U.S.C. 41) is 
     amended--
       (1) in section 5(b), by inserting ``(excluding the 
     consummation of a proposed merger, acquisition, joint 
     venture, or similar transaction that is subject to section 7 
     of the Clayton Act (15 U.S.C. 18), except in cases where the 
     Commission approves an agreement with the parties to the 
     transaction that contains a consent order)'' after ``unfair 
     method of competition'';
       (2) in section 9, by inserting after the fourth 
     undesignated paragraph the following:
       ``Upon the application of the commission with respect to 
     any activity related to the consummation of a proposed 
     merger, acquisition, joint venture, or similar transaction 
     that is subject to section 7 of the Clayton Act (15 U.S.C. 
     18) that may result in any unfair method of competition, the 
     district courts of the United States shall have jurisdiction 
     to issue writs of mandamus commanding any person or 
     corporation to comply with the provisions of this Act or any 
     order of the commission made in pursuance thereof.'';
       (3) in section 13(b)(1), by inserting ``(excluding section 
     7 of the Clayton Act (15 U.S.C. 18) and section 5(a)(1) with 
     respect to the consummation of a proposed merger, 
     acquisition, joint venture, or similar transaction that is 
     subject to section 7 of the Clayton Act (15 U.S.C. 18))'' 
     after ``Commission''; and
       (4) in section 20(c)(1), by inserting ``or under section 7 
     of the Clayton Act (15 U.S.C. 18), where applicable,'' after 
     ``Act,''.

     SEC. 4. EFFECTIVE DATE; APPLICATION OF AMENDMENTS.

       (a) Effective Date.--Except as provided in subsection (b), 
     this Act and the amendments made by this Act shall take 
     effect on the date of the enactment of this Act.
       (b) Application of Amendments.--The amendments made by this 
     Act shall not apply to any of the following that occurs 
     before the date of enactment of this Act:
       (1) A violation of section 7 of the Clayton Act (15 U.S.C. 
     18).
       (2) A transaction with respect to which there is compliance 
     with section 7A of the Clayton Act (15 U.S.C. 18a).
       (3) A case in which a preliminary injunction has been filed 
     in a district court of the United States.

  The SPEAKER pro tempore. The bill shall be debatable for 1 hour 
equally divided and controlled by the chair and ranking minority member 
of the Committee on the Judiciary.
  After 1 hour of debate, it shall be in order to consider the 
amendment printed in House Report 115-664, if offered by the Member 
designated in the report, which shall be considered read, shall be 
separately debatable for the time specified in the report equally 
divided and controlled by the proponent and an opponent, and shall not 
be subject to a demand for a division of the question.
  The gentleman from Virginia (Mr. Goodlatte) and the gentleman from 
New York (Mr. Nadler) each will control 30 minutes.
  The Chair recognizes the gentleman from Virginia.


 Permission to Postpone Proceedings on Adopting Amendment to H.R. 5645

  Mr. GOODLATTE. Mr. Speaker, I ask unanimous consent that the question 
of adopting the amendment to H.R. 5645 may be subject to postponement 
as though under clause 8 of rule XX.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Virginia?
  There was no objection.


                             General Leave

  Mr. GOODLATTE. Mr. Speaker, I ask unanimous consent that all Members 
have 5 legislative days to revise and extend their remarks and include 
extraneous material on H.R. 5645.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Virginia?
  There was no objection.
  Mr. GOODLATTE. Mr. Speaker, I yield myself such time as I may 
consume.
  In 1914, Congress passed the Federal Trade Commission Act, marking 
the

[[Page H3852]]

beginning of a dual antitrust enforcement regime in the United States.
  Because both Department of Justice and the Federal Trade Commission 
enforce our Nation's antitrust laws, companies may, and often do, have 
different experiences when interacting with one agency relative to the 
other. One area in which the disparity can be the most striking and 
troubling is in the merger review process.
  When a company wishes to merge with or purchase another company, it 
must notify both antitrust enforcement agencies of the proposed 
transaction. The Department of Justice and the Federal Trade Commission 
then determine which agency will be responsible for reviewing the 
transaction. As there are no fixed rules for making this determination, 
it can appear that the decision is made on the basis of a flip of a 
coin.
  There are two substantial differences that companies face based on 
the identity of the antitrust enforcement agency that reviews the 
companies' proposed transaction.
  The first difference arises if the agency seeks to prevent the 
transaction by pursuing a preliminary injunction in Federal court. A 
different legal standard is applied to a preliminary injunction request 
based solely on the identity of the requesting antitrust enforcement 
agency.
  The second difference lies in the process available to each antitrust 
enforcement agency to prevent a transaction from proceeding. The FTC 
may pursue administrative litigation against a proposed transaction, 
even after a court denies its preliminary injunction request. In 
contrast, DOJ cannot pursue administrative litigation.
  There is no justification for these disparities in the merger review 
processes and standards. The bipartisan Antitrust Modernization 
Commission recommended that Congress remove these disparities, and the 
bill before us today, the Standard Merger and Acquisition Reviews 
Through Equal Rules Act, or the SMARTER Act, does just that. I applaud 
Representative Handel for introducing this important legislation that 
will enhance the transparency, predictability, and credibility of the 
antitrust merger review process.
  By enacting the SMARTER Act into law, Congress will ensure that 
companies no longer will be subjected to fundamentally different 
processes and standards based on the flip of a coin. Notably, the 
legislation has garnered the support of former and current FTC 
commissioners, including former Chairman David Clanton, former 
Commissioner Josh Wright, and current Commissioner Maureen Ohlhausen.
  The SMARTER Act is an important step toward assuring that our 
Nation's antitrust laws are enforced in a manner that is fair, 
consistent, and predictable.
  Mr. Speaker, I urge my colleagues to vote in favor of this good 
government bill, and I reserve the balance of my time.
  Mr. NADLER. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I rise in opposition to H.R. 5645, the Standard Merger 
and Acquisition Reviews Through Equal Rules Act. This bill would 
significantly undermine the Federal Trade Commission's ability to 
enforce the Nation's antitrust laws, which help protect Americans from 
anticompetitive behavior in the marketplace. In the guise of 
harmonization with the Department of Justice, it would eliminate the 
FTC's administrative litigation enforcement authority with respect to 
corporate mergers and other transactions. It would also change and 
potentially increase the burden the FTC must demonstrate in court when 
seeking a preliminary injunction against the proposed merger.
  In doing so, the bill would undercut a critical tool that the FTC 
relies on to promote competition. It also risks sacrificing the 
fundamental nature of the FTC as an independent administrative agency, 
rather than an executive department, subject to the political whims of 
the President. This blatant attack on the FTC's congressionally 
mandated independence contravenes more than a century of legislative 
intent.
  In 1914, Congress responded to a wave of mergers and corporate abuses 
by establishing the FTC as an independent body of experts tasked with 
developing and advancing competition policy free from political 
pressure. In doing so, Congress specifically gave the Commission broad 
enforcement and investigatory authorities, including the power to 
challenge anticompetitive mergers and other conduct through 
administrative litigation.

  This broad grant of statutory authority was not accidental. Louis 
Brandeis, a visionary architect of our Nation's competition system, 
advocated for the embrace of administrative litigation during Congress' 
consideration of the FTC Act, and President Woodrow Wilson said such 
authority was critical to the FTC's mission ``to warn where things were 
going wrong and assist instead of check.''
  As former Republican FTC Chairman William Kovacic warned: ``Without a 
substantial, effective administrative litigation program, the aim of 
making the Commission an influential competition policy tribunal could 
not be accomplished.''
  Nevertheless, this bill would eliminate this critical tool for 
promoting competition and, in the process, would erode the Commission's 
unique qualities and independence.
  To further undermine the Commission's independence, the bill would 
also require the FTC to meet the same standard in court that the 
Justice Department meets when seeking a preliminary injunction against 
the proposed merger. But the FTC and the DOJ are two different agencies 
with different missions and different traditions.
  Under current law, the Commission, by statute, must show that a 
preliminary injunction ``would be in the public interest.'' The Justice 
Department, on the other hand, has no statutory standard and must 
simply meet the common law preliminary injunction standard, such as the 
balance of equities and the risk of irreparable harm.
  As our Nation's leading antitrust enforcers have previously 
testified, there is no practical difference between the standards or 
evidence that the Commission has abused its authority. So it is 
entirely unclear what problem the bill is attempting to solve. But in 
making this change, this bill could cause unnecessary confusion for the 
courts or could signal a desire to increase the burden on the agency to 
demonstrate the harms of an anticompetitive merger. That result alone 
is unacceptable.
  But even more fundamentally, this legislation is a step in the wrong 
direction for our economy and for the prosperity and security of all 
Americans. The decline of antitrust enforcement over the past several 
decades has been an economic catastrophe for millions of workers who 
have lost their jobs or seen their wages lowered. It has resulted in 
fewer choices and higher prices for consumers, including increased 
costs for healthcare, prescription drugs, and other essential goods and 
services.
  The importance of robust antitrust enforcement is not simply a 
question of preventing higher prices for consumers. In the absence of 
competition, employers have the power to suppress the wages and 
mobility of American workers through anticompetitive contracting 
practices, such as noncompete clauses and no-poach agreements.
  And when large corporations run amok, locally owned businesses, the 
economic lifeblood of our communities, wither on the vine. Concentrated 
economic power is also a serious threat to our vibrant democracy. Large 
corporations with an outsized role in the policymaking process are able 
to further entrench their dominance through favorable rules and 
enforcement decisions.
  And when a large corporation with market power has the ability to 
control the flow of information, it also has the power to shape public 
opinion in ways that erode democratic values and undermine the voice of 
the many in favor of the outsized profits of the few.
  By further weakening our antitrust laws, H.R. 5645 would accelerate 
this disturbing trend. Accordingly, I must oppose this legislation and 
urge my colleagues to vote against this very bad bill.
  Mr. Speaker, I reserve the balance of my time.
  Mr. GOODLATTE. Mr. Speaker, I yield as much time as she may consume 
to the gentlewoman from Georgia (Mrs. Handel), the chief sponsor of the 
legislation.
  Mrs. HANDEL. Mr. Speaker, I thank Chairman Goodlatte for the 
opportunity to bring this bill forward. I rise

[[Page H3853]]

today in support of H.R. 5645, the Standard Merger and Acquisition 
Reviews Through Equal Rules Act, or the SMARTER Act.
  Mr. Speaker, the SMARTER Act is a much-needed piece of legislation to 
harmonize and modernize our antitrust procedures. Despite the shared 
responsibilities for the antitrust review between the FTC and the DOJ, 
both agencies follow dramatically different review processes, meaning 
that businesses are held to conflicting standards and procedures, 
depending on which agency actually conducts the review. And that 
review, as Chairman Goodlatte pointed out, is essentially a coin toss.
  We can do better than that. The SMARTER Act in no way weakens or 
undermines our antitrust review process. It does not prevent or hinder 
either agency from conducting a full and thorough review.
  Rather, the SMARTER Act actually strengthens the antitrust review 
process by injecting greater consistency, more transparency, and 
enhance consumer protection when we have these mergers and 
acquisitions.
  With that, I urge my colleagues to support the SMARTER Act.
  Mr. NADLER. Mr. Speaker, I yield 6 minutes to the the gentleman from 
Rhode Island (Mr. Cicilline), the distinguished ranking member of the 
Regulatory Reform, Commercial and Antitrust Law Subcommittee.
  Mr. CICILLINE. Mr. Speaker, I thank the gentleman from New York for 
yielding.
  Mr. Speaker, I rise in strong opposition to H.R. 5645, the so-called 
SMARTER Act, an assault on the Federal Trade Commission's ability to 
vigorously promote competition through merger enforcement.

                              {time}  1400

  Over a century ago, Congress responded to waves of consolidation by 
creating the Federal Trade Commission to promote, development, and 
protect competition and the antitrust laws.
  There is longstanding, bipartisan consensus that the Commission's use 
of administrative litigation to address anticompetitive mergers and 
conduct is core to this mission. This includes the former Republican 
and Democratic chairs of the Commission under George W. Bush and the 
Obama administrations, who have each raised serious concerns about this 
legislation, precisely because it eliminates a tool that has been 
critical in combating anti-competitive mergers and conduct, including 
mergers that would have raised Americans' cost of healthcare.
  Top Republican antitrust enforcers have long supported the use of 
administrative litigation in merger enforcement to promote competition 
and develop the antitrust laws.
  In 2003, Joseph Simons, who was appointed by President Trump and 
recently confirmed as the chairman of the Commission, stated as 
director of the FTC's Bureau of Competition that administrative 
litigation has ``substantial public policy benefits.'' He also referred 
to this tool as ``an instrument for developing the law'' that 
``increases the transparency of Commission decisionmaking through 
carefully written opinions that accompany a Commission final litigated 
order can give considerable guidance to the bar and the business 
community on applicable standards and enforcement policy.''
  And in 2004, Barry Nigro, who also served as a director of the FTC's 
Bureau of Competition under the George W. Bush administration, and was 
appointed by President Trump to serve in the Justice Department's 
Antitrust Division, stated that the ``volume of administrative 
litigation is no accident. It reflects our belief in administrative 
litigation as a way to take advantage of the FTC's expertise in the 
development of antitrust jurisprudence, particularly in the kind of 
complex matters that the FTC was created to address.''
  Nevertheless, proponents of the SMARTER Act argue that the outcome of 
a transaction should not depend on a ``coin flip'' to determine which 
antitrust agency will review a transaction. But this claim is 
untethered from how antitrust enforcement actually works in the vast 
majority of cases. In fact, the determination of the moving party is 
determined by each agency's jurisdictional district, or areas committed 
by statute, and consistent with a well-developed body of case law, and 
not by a coin toss.
  In the most comprehensive study of administrative litigation to date, 
Republican FTC Commissioner Maureen Ohlhausen debunked procedural 
concerns with administrative litigation as ``mostly anecdotal or 
theoretical,'' concluding it has been a transformative tool for 
advancing competition policy.
  And last Congress, Jonathan Jacobson, a leading antitrust attorney, 
who currently serves as the chair of the American Bar Association's 
section on antitrust law, testified that, in his decades of practice, 
he has never seen a merger that turned on the differences that the 
SMARTER Act seeks to address. In fact, less than 2 percent of all 
mergers are blocked by the antitrust agencies, and an even smaller 
percentage of these cases go to trial.
  The FTC also has a pristine record when using this authority. It has 
won six out of seven cases before the Supreme Court, and five of these 
were brought through administrative litigation.
  We should, therefore, be deeply skeptical about baseless speculation 
and support of the bill. Empty rhetoric is no substitute for evidence 
that the SMARTER Act actually solves a real problem.
  But even more importantly, this bill is a major step in the wrong 
direction on making our economy work for everybody. There is 
overwhelming evidence that concentrated economic power is at historic 
levels in this country, and has structurally weakened competition on an 
economy-wide basis.
  This lack of competition is a fundamental threat to the economic 
opportunity of hardworking Americans who want lower prices, more and 
better services, and better wages. We need more competition, not less.
  As the nonpartisan Open Markets Institute notes, ``Given the severity 
of the concentration problem in America today, and its economic and 
political consequences, Congress should be looking to enhance the 
powers of all of America's antimonopoly agencies.''
  House and Senate Democrats have proposed a better deal to enhance 
competition to reduce lower prices and more choices for consumers.
  Instead of undermining antitrust enforcement on the basis of purely 
speculative harms--as H.R. 5645 would do--we should be giving the 
antitrust agencies the resources and tools they need to robustly 
enforce the law.
  In closing, I urge my colleagues to oppose this legislation, which 
does nothing to reduce concentrated economic power or address the 
economic challenges working people face every day and, in fact, will 
make the problem worse. It will make it easier to consolidate economic 
power in the way that undermines consumer choices, consumer costs, and 
will ultimately undermine hardworking American families.
  Mr. Speaker, I urge my colleagues to vote ``no,'' and I thank the 
gentleman for yielding.
  Mr. GOODLATTE. Mr. Speaker, I reserve the balance of my time.
  Mr. NADLER. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, the nonpartisan Open Markets Institute, in its 
opposition to H.R. 5645 states: ``Given the severity of the 
concentration problem in America today, and its economic and political 
consequences, Congress should be looking to enhance the powers of all 
of America's antimonopoly agencies.''
  I strongly agree: Congress should be strengthening, not weakening, 
our competition system to protect economic opportunity, innovation, and 
choice. That is why I have joined several of my Democratic colleagues--
Representatives Joe Crowley, David Cicilline, and Keith Ellison--in 
introducing a package of bold economic measures to strengthen 
protections that will help ensure that hardworking Americans have more 
economic opportunity by ending anticompetitive employment practices.

  This package includes H.R. 5642, the Restoring and Improving Merger 
Enforcement Act, legislation that I introduced to prohibit the 
consideration of false economic efficiencies--like corporate layoffs, 
actually costing employment--to justify anticompetitive mergers.
  But rather than address these important measures, which would 
actually

[[Page H3854]]

help American workers and consumers, or give the antitrust agencies the 
resources they need to really promote competition, this bill would do 
the opposite by undermining the FTC's ability to vigorously enforce 
antitrust laws under the guise of attempting to solve a problem that 
does not exist.
  I would submit that an economy in which we are down to four major 
airlines and two major railroads, and going in the same direction in 
almost every other segment of the economy, we should not be weakening 
our antitrust laws and our antitrust enforcement, we should be 
strengthening them. This bill goes in exactly the wrong direction and 
is guaranteed to further increase the concentration of economic power 
in our economy, and to further decrease the bargaining power that 
workers have to get decent wages and working conditions.
  Mr. Speaker, this is a deeply anti-employee bill, it is a pro-
monopoly bill, and it is a very anti-economic growth bill. I urge my 
colleagues to oppose this deeply flawed measure, and I yield back the 
balance of my time.
  Mr. GOODLATTE. Mr. Speaker, this is a good bill, I urge my colleagues 
to support it, and I yield back the balance of my time.
  Ms. JACKSON LEE. Mr. Speaker, I rise in opposition to H.R. 5645, the 
Standard Merger and Acquisition Reviews Through Equal Rules Act--
otherwise known as the SMARTER Act.
  Mr. Speaker, this bill is not about creating equal rules or 
implementing ``smarter'' legislation.
  Rather, it is about attacking the administrative authority of the 
Federal Trade Commission (FTC).
  H.R. 5645 is an unnecessary measure that would fundamentally 
undermine the FTC's independent enforcement authority and ability to 
prevent anti-competitive mergers.
  As we all know, the FTC was created by Congress with the specific 
intent of creating an independent antitrust enforcement agency and 
supplemental authority to the Department of Justice (DOJ).
  Specifically, if enacted, the SMARTER Act would strip the FTC of its 
power by eliminating the agency's authority to enforce antitrust laws 
in larger merger cases, and by blocking its ability to use its 
administrative proceedings to stop a harmful merger transaction.
  The bill seeks to do so by requiring that the FTC use the same 
enforcement process as the DOJ.
  This proposed sweeping change undercuts the FTC's administrative 
litigation process for contested mergers or acquisitions and 
effectively removes the very core and functioning character of this 
agency.
  Moreover, reducing the FTC's independence directly conflicts with 
Congress's intent in creating this antitrust enforcement agency and 
policymaking body as a distinct and independent shield from political 
and executive interference.
  As enforcers of Section 7 of the Clayton Act, both the FTC and the 
DOJ have the authority and responsibility to prohibit mergers and 
acquisitions that would ``substantially lessen competition'' or ``tend 
to create a monopoly''.
  Under this enforcement authority, these agencies serve to complement 
each other, and have developed over the years to specialize in 
particular industries and markets.
  Based upon historical experience and coordinated developments, the 
FTC serves to protect consumers and consumer spending. For example, 
healthcare, pharmaceuticals, professional services, food, energy, and 
certain high-tech industries like computer technology and internet 
services.
  Whereas, the DOJ typically assumes a specialized focus on larger 
corporate industries like telecommunications, banks, railroads, and 
airlines.
  Thus, while the FTC and the DOJ have operated with a shared 
responsibility of enforcing federal antitrust laws, these two federal 
agencies are unique and each retain exclusive authority of certain 
conduct.
  Serving as joint enforcement agencies for over 100 years, the FTC and 
DOJ rely upon each other to coordinate agency jurisdiction and 
harmonized standards and practices.
  The SMARTER Act is simply unnecessary as it fails to put forth any 
meaningful effort to enhance or rectify any expressed concerns 
governing these longstanding agency operations.
  In particular, in 2002 Congress sought to review and amend antitrust 
laws and policies in light of the changing economy and rise in 
technological advances.
  In 2007 a report issued by the Antitrust Modernization Commission 
(AMC) set forth specific recommendations for the FTC to eliminate real 
or perceived disparities in the review process for merger transactions.
  According to the AMC, Congress should seek to ensure that the same or 
comparable standard is used when seeking a preliminary injunction 
against a potentially anticompetitive transaction.
  However, the SMARTER Act goes beyond this recommendation and seeks to 
chip away and carve out the entire administrative adjudication 
authority of the FTC.
  In order to identify potential violations of the Clayton Act, the FTC 
and the DOJ review proposed merger transactions pursuant to the Hart-
Scott-Rodino Antitrust Improvements Act (the HSR Act), which provides 
advance notice and sets forth guidelines on large merger and 
acquisition transactions.
  The heart of this concern is the alternate means by which the FTC and 
DOJ carry out their enforcement roles during this HSR pre-merger 
process.
  Namely, H.R. 5645 is curiously motivated by the preliminary 
injunction process utilized by the FTC and the DOJ to halt proposed 
transactions that would violate the Clayton Act if completed.
  Additionally, the DOJ typically consolidates the preliminary and 
permanent injunction proceedings, while the FTC typically only pursues 
preliminary injunctions.
  While some argue that proposed transactions reviewed through the FTC 
would be treated more leniently than those reviewed through the DOJ, 
this assertion has not been fully substantiated by the AMC.
  The pre-merger review process and the injunction standards utilized 
by the FTC and DOJ are the very procedural steps that characterize and 
distinguish the respective enforcement roles of these agencies.
  This supposed area of concern addresses only a small fraction of 
proposed transactions, as the vast majority of merger and acquisition 
proposals are found to not be in violation of the Clayton Act upon 
undergoing the review process.

  The FTC and DOJ review over a thousand merger filings every year.
  Yet 95 percent of those merger filings present no competitive issues 
or challenged transactions.
  As reported by the American Antitrust Institute (AAI), the overall 
concerns purported by the bill's sponsors are simply without 
foundation.
  In contrast, the overall work of the FTC has an incredible impact on 
American consumers, communities and corporations and will be severely 
impacted if disrupted.
  As highlighted by the FTC Chairwoman Edith Ramirez in her testimony 
before the House Judiciary Subcommittee on Regulatory Reform, 
Commercial and Antitrust Law, the FTC prioritizes the protection of 
consumers and the prevention of anticompetitive market practices.
  In fact, the FTC exists to ensure fair competition and to prevent 
enormous concentrations of economic power that hurts consumers and 
small businesses.
  For example:
  In the past year, the FTC has challenged over 28 mergers, (although 
in most it was able to negotiate a remedy to allow the merger to 
proceed).
  At the consumer level in my home state of Texas, the FTC secured an 
$82,000 settlement against an auto-dealer found in violation of the 
Fair Credit Reporting Act in September 2017.
  Also last year, the FTC ordered the largest divestiture ever in a 
supermarket merger, requiring Albertsons and Safeway to sell 168 
supermarkets in 130 local markets throughout several states, ensuring 
that communities continue to benefit from competition among their local 
supermarkets.
  The FTC has also taken an aggressive stance on stopping 
anticompetitive mergers and conduct in the healthcare market by halting 
such practices through administrative litigation.
  In September 2017, the FTC secured a $1.1 million settlement to 
consumers who lost money to a health insurance telemarketing scam.
  And in the last two years, the FTC took action in 13 pharmaceutical 
mergers, ordering divestitures to preserve competition for drugs that 
treat diabetes, hypertension, and cancer, as well as widely used 
generic medications like oral contraceptives and antibiotics.
  Last year, on March 18, 2016, after a thoroughly vetted 
investigation, the FTC approved a final order preserving competition 
among outpatient dialysis clinics in Laredo, Texas.
  That is, the FTC cleared U.S. Renal Care, Inc.'s (the country's third 
largest outpatient dialysis provider) $640 million purchase of dialysis 
competitor DSI Renal, on the condition that three of DSI's outpatient 
clinics in Laredo, Texas be handed over to a third party.
  Absent this agreed divestiture, the acquisition would have led to a 
significant increase in market concentration and anti-competitive 
effects.
  The likely result, according to the FTC, would have included the 
elimination of direct competition between U.S. Renal Care and DSI 
Renal, reduced incentives to improve services

[[Page H3855]]

or quality for dialysis patients, and increased ability for the merged 
company to unilaterally increase prices.
  Notably, the DOJ has also been successful in securing investigations 
and halting suspected harmful merger practices on a much larger scale 
(in the health care and airline industry as of late).
  In June 2016, the DOJ put pressure on several multibillion dollar 
health insurers seeking to engage in large merger transactions with 
near certain suppression of market competition in the healthcare 
industry.
  In August 2016, the DOJ issued civil investigative demands on several 
major US airlines seeking to halt any potential unlawful mergers.
  These cases demonstrate the need for continued protection of the FTC 
and its ability to effectively carry out injunctions on harmful merger 
and acquisition activities, as well as, anticompetitive business 
conduct that harms consumers and restrains market activity.
  The ability of the FTC to function independently is necessary to the 
success of both the FTC and DOJ.
  The far-reaching and elusive SMARTER Act fails to keep the 
foundational integrity of these agencies and should be opposed.
  I urge my colleagues to vote against this serious threat to our 
fundamental protections of consumers and fair economic competition.
  The SPEAKER pro tempore (Mr. Duncan of Tennessee). All time for 
debate on the bill has expired.


    Amendment No. 1 Printed in House Report 115-664 Offered by Mr. 
                               Goodlatte

  Mr. GOODLATTE. Mr. Speaker, I have an amendment at the desk.
  The SPEAKER pro tempore. The Clerk will designate the amendment.
  The text of the amendment is as follows:

       Page 2, line 9, strike ``7'' and insert ``15''.
       Page 3, strike lines 2 through 10, and insert the 
     following:
       (A) in subsection (a) by inserting ``or a proceeding 
     brought by the Federal Trade Commission under section 15'' 
     after ``United States under the antitrust laws''; and
       (B) in subsection (i) by inserting ``or a proceeding 
     instituted by the Federal Trade Commission under section 15'' 
     after ``antitrust laws'';
       Page 3, strike lines 11 through 22, and insert the 
     following:
       (3) Section 11 of the Clayton Act (15 U.S.C. 21) is 
     amended--
       (A) in subsection (b) by striking ``Whenever'' and 
     inserting ``Except as provided in subsection (m), whenever'', 
     and
       (B) by adding at the end the following:
       ``(m) The Federal Trade Commission may not use the 
     procedures for administrative adjudication set forth in 
     subsection (b) of this section to prevent the consummation of 
     a proposed merger, acquisition, joint venture, or similar 
     transaction that is subject to section 7, unless the 
     complaint is accompanied by a consent agreement between the 
     Commission and a party to the transaction that resolves all 
     the violations alleged in the complaint. The Federal Trade 
     Commission may institute proceedings in a district court 
     under section 15 to prevent the consummation of such a 
     transaction. In any such proceeding the district court shall 
     apply the same standard for granting injunctive relieve as 
     applicable to a proceeding brought by the United States 
     attorneys under section 15. The Federal Trade Commission may 
     issue an administrative complaint under this section if the 
     complaint is accompanied by a consent agreement between the 
     Federal Trade Commission and a party to the transaction 
     settling the alleged violations.'';
       Page 3, line 23, strike ``(including'' and insert ``or''.
       Page 4. beginning on line 1, strike ``with respect to a 
     violation of section 7)'' and insert ``under section 15''.
       Page 4, strike lines 3 through 5, and insert the following:
       (5) in section 15, by inserting ``and the duty of the 
     Federal Trade Commission with respect to the consummation of 
     a proposed merger, acquisition, joint venture, or similar 
     transaction that is subject to section 7 and not yet 
     consummated,'' after ``General''.
       Page 5, strike lines 12 through 14, and insert the 
     following:
       (4) in section 16(a)(2)--
       (A) in subparagraph (D) by striking ``or'' at the end,
       (B) in subparagraph (E) by adding ``or'' at the end, and
       (C) by adding at the end the following:
       ``(F) under section 15 of the Clayton Act (15 U.S.C. 
     25);''.

  The SPEAKER pro tempore. Pursuant to House Resolution 872, the 
gentleman from Virginia (Mr. Goodlatte) and a Member opposed each will 
control 5 minutes.
  The Chair recognizes the gentleman from Virginia.
  Mr. GOODLATTE. Mr. Speaker, this amendment makes a series of useful 
technical and clarifying changes suggested by the Federal Trade 
Commission.
  At the FTC's request, the amendment adds language stating explicitly 
that the agency retains independent litigating authority in merger 
cases brought under the Clayton Act. This makes clear that the FTC is 
not forced to rely on the Department of Justice in these cases.
  The amendment also strikes language referring to the FTC's authority 
to issue civil investigative demands in merger cases. This is because 
the reference is unnecessary and could create a negative inference that 
the FTC does not enjoy such authority in other contexts.
  The amendment makes further technical improvements in several places 
in the bill that refer to the FTC bringing an action under section 7 of 
the Clayton Act. The FTC's authority to bring an action in court 
actually derives from section 15 of the act, so the amendment updates 
that citation.
  Furthermore, the amendment changes the phrase ``including'' FTC 
proceedings to ``or'' FTC proceedings in several places in the 
underlying bill. This is to underscore that FTC settlements are 
distinct from DOJ antitrust settlements and, thus, are not subject to 
the judicial review provisions of the Tunney Act.
  The amendment also refines language in the underlying bill that 
ensures the same legal standards are applied to FTC and DOJ 
injunctions, and that preserves FTC authority to use administrative 
adjudication as part of a settlement agreement.
  Specifically, the changes more clearly define the circumstances in 
which the FTC may seek an injunction and more clearly state that the 
FTC must proceed in Federal court, not administratively. The amended 
language also more accurately reflects the FTC's practices for 
administrative settlements, more clearly states that the district 
courts must apply the same standard in those cases as it would apply 
when the Department of Justice seeks injunctions, and more clearly 
provides that the new rules change only administrative adjudications, 
not investigative procedures.
  Finally, the amendment clarifies that the FTC's duty to use the 
courts, rather than administrative procedures, to block anticompetitive 
behavior, extends only to the merger-type actions that this bill is 
intended to cover.
  Again, these changes are of a technical nature and were all 
recommended by the FTC itself. Accordingly, I urge my colleagues to 
support this amendment.
  Mr. Speaker, I reserve the balance of my time.
  Mr. NADLER. Mr. Speaker, I claim the time in opposition to the 
gentleman's amendment.
  The SPEAKER pro tempore. The gentleman from New York is recognized 
for 5 minutes.
  Mr. NADLER. Mr. Speaker, I yield myself such time as I may consume.
  This amendment makes several technical revisions to clarify that the 
bill does not apply to consummated mergers and other transactions. 
While this change marginally addresses one concern with the bill, it 
does nothing to change the most fundamental flaw with the bill, which 
is that it eliminates the Federal Trade Commission's administrative 
litigation authority in merger cases.
  As we noted during consideration of this bill in the Judiciary 
Committee last year, and in prior Congresses, the SMARTER Act is 
overbroad as currently drafted and applies to both unconsummated and 
consummated transactions.
  According to John Jacobson, a leading antitrust attorney, who served 
as commissioner of the Antitrust Modernization Commission, this bill 
could easily be ``construed as prohibiting a challenge to the 
consummation of any merger in administrative proceedings, even a post-
merger challenge, notwithstanding the term `proposed.' ''
  Technical feedback by senior staff at the FTC, under both Democratic 
and Republican administrations, confirmed this view.
  While the amendment makes the useful clarification that H.R. 5645 
would not apply to already consummated transactions, the bill would 
still eliminate the FTC's ability to use administrative litigation in 
proposed mergers, striking at the core of the Commission's independence 
and congressionally mandated design, without any evidence that such a 
change is warranted or desirable.
  As Mr. Jacobson has also noted in his testimony in opposition to a 
similar

[[Page H3856]]

version of this legislation considered by the Senate, eliminating the 
``FTC's ability to conduct administrative proceedings in pre-
consummation merger challenges is harmful to the sound administration 
of the antitrust laws.''
  At a time when there is an increasing desire across the ideological 
spectrum to strengthen antitrust enforcement in the face of extreme 
concentrations of corporate power in industry after industry, the 
SMARTER Act proposes to go in the opposite direction. Congress was wise 
to establish an independent agency in 1914 to ensure strong antitrust 
enforcement, and we would be wise today not to undermine that choice.
  Mr. Speaker, this amendment essentially puts lipstick on a pig. It 
does not change my basic opposition to a bill that is fundamentally 
flawed in its conception. Therefore, I must oppose this amendment, and 
I reserve the balance of my time.
  Mr. GOODLATTE. Mr. Speaker, I continue to reserve the balance of my 
time.
  Mr. NADLER. Mr. Speaker, I yield myself the balance of the time.
  Mr. Speaker, as a practical matter, the FTC only challenges a handful 
of proposed mergers, on average, per year. These transactions present 
some of the largest, most complex, and potentially most concerning 
issues. But in most of these cases, the parties either abandon the 
transaction or negotiate a settlement.
  Nonetheless, in those few instances where the FTC does challenge a 
transaction, it is in a position to answer novel questions of law and, 
thereby, develop expertise and guidance for future applications. 
Indeed, that is the whole point of having an FTC, and that is the whole 
point of administrative adjudication authority.
  As the Antitrust Institute has noted in its opposition to the SMARTER 
Act to this bill, ``the FTC's use of administrative powers should be 
carefully safeguarded, because it has contributed critically to the 
effective shaping of U.S. merger policy without detracting from the 
speed or effectiveness of merger review.''

                              {time}  1415

  In addition, Republican FTC Commissioner Maureen Ohlhausen's 2016 
study on administrative litigation debunks the claim of procedural bias 
against merging parties. Her study found that the FTC's appellate 
success and case work ``do not support a narrative that the Commission 
blindly supports ill-conceived cases because of systemic bias. To the 
contrary, they show a recent history of solid, well-supported 
enforcement actions.''
  Even where the FTC does not use administrative adjudication, the 
potential use of this tool is invaluable in the agency's ability to 
successfully get emerging parties to agree to structural remedies, such 
as divestitures, to address concerns with a proposed merger.
  It is unthinkable to remove the FTC's administrative litigation 
authority, as this amendment would continue to do, when such authority 
is only used to protect against the most anticompetitive mergers that 
are certain to substantially lessen competition, harm consumers, raise 
prices, and hurt workers.
  For these reasons, I urge my colleagues to oppose this amendment.
  Mr. Speaker, I yield back the balance of my time.
  Mr. GOODLATTE. Mr. Speaker, I yield myself such time as I may 
consume.
  The arguments we have heard against this bill are without merit.
  It has charged that the SMARTER Act would make it more difficult for 
the FTC to fulfill its consumer protection mandate. This is incorrect.
  The FTC's consumer protection powers are completely independent from 
the antitrust laws. The SMARTER Act deals only with the antitrust 
piece, so, by its terms, does not impact the FTC's ability to prosecute 
``unfair or deceptive acts or practices.''
  As for harm to consumers from proposed mergers, the SMARTER Act does 
not, in any way, affect substantive antitrust law; it does not amend, 
in any form or fashion, section 7 of the Clayton Antitrust Act or any 
of the FTC's consumer protection powers.
  Opponents also claim that the SMARTER Act removes an important tool 
from the FTC by eliminating its ability to pursue administrative 
litigation. This, too, is a red herring.
  The SMARTER Act only removes the FTC's administrative litigation 
authority in the very narrow context of proposed transactions. A report 
from the bipartisan Antitrust Modernization Commission determined that 
any benefit from such authority was marginal and ``significantly 
outweighed by the costs.''
  The FTC can still pursue administrative litigation in conduct cases 
and in actions against consummated mergers. Indeed, the AMC report 
stated specifically that: ``Elimination of administrative litigation in 
. . . merger''--review--``cases will not deprive the FTC of an 
important enforcement option.''
  Opponents also charge that enacting the SMARTER Act will make it more 
difficult for the antitrust enforcement agencies to stop a merger, but 
the SMARTER Act only changes the process; it does not have any 
substantive impact on merger reviews.
  But don't take my word for it. A letter from 15 leading antitrust 
professors states: ``The SMARTER Act does nothing to undermine the 
FTC's authority; it simply ensures that the merger review processes and 
standards are equally applied to merger parties regardless of which 
agency reviews the transaction.''
  But perhaps the most ironic argument brought against the bill is that 
it is unnecessary because the FTC rarely initiates administrative 
litigation after a court denies a preliminary injunction request. 
Administrative adjudications may be rare, not because regulators use 
the powers sparingly, but because the mere prospect of this protracted, 
costly process may prompt companies to abandon the merger even though 
they prevailed in court. That hardly seems fair.
  Parties to a merger should receive the same treatment and have the 
same process regardless of the reviewing antitrust agency, and the 
SMARTER Act accomplishes that goal.
  This legislation will help America continue to serve as a leader and 
innovator in competition law, and I urge my colleagues to support it.
  Mr. Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore. Pursuant to the rule, the previous question 
is ordered on the bill and on the amendment offered by the gentleman 
from Virginia (Mr. Goodlatte).
  The question is on the amendment offered by the gentleman from 
Virginia (Mr. Goodlatte).
  The amendment was agreed to.
  The SPEAKER pro tempore. The question is on the engrossment and third 
reading of the bill.
  The bill was ordered to be engrossed and read a third time, and was 
read the third time.


                           Motion to Recommit

  Mr. DOGGETT. Mr. Speaker, I have a motion to recommit at the desk.
  The SPEAKER pro tempore. Is the gentleman opposed to the bill?
  Mr. DOGGETT. Strongly.
  The SPEAKER pro tempore. The Clerk will report the motion to 
recommit.
  The Clerk read as follows:

       Mr. Doggett moves to recommit the bill (H.R. 5645) to the 
     Committee on the Judiciary, with instructions to report the 
     bill back to the House forthwith with the following 
     amendment:
       At the end of the bill, add the following:

     SEC. 5. PROTECTING CONSUMERS AGAINST HIGH PRESCRIPTION DRUG 
                   COSTS.

       Notwithstanding any other provision of this Act--
       (1) the amendments made by this Act shall not apply to 
     mergers that would unreasonably increase the costs of 
     pharmaceutical drugs; and
       (2) the Clayton Act (15 U.S.C.12 et seq.) and Federal Trade 
     Commission Act (15 U.S.C. 45 et seq.) as in effect 
     immediately before the date of the enactment of this Act 
     shall apply to mergers that would unreasonably increase the 
     costs of pharmaceutical drugs.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Texas is recognized for 5 minutes in support of his motion.
  Mr. DOGGETT. Mr. Speaker, I offer this motion to recommit because 
Republicans have been motionless when it comes to acting on the 
spiraling drug prices that are harming so many Americans.
  The willingness of this Congress to sit on its hands, stand idle in 
the face of the prescription price gouging that so many of our 
neighbors face, is nothing short of appalling, and there is

[[Page H3857]]

nothing ``smarter'' in this bill about dealing with that terrible 
problem.
  Of course, President Trump has told us it is going to be 
``beautiful,'' but every time you turn around, he is cozying up with 
some pharmaceutical lobbyists that are raising prices and putting some 
of their people in charge of his drug agenda.
  All that this motion does is to take the very modest step of reducing 
the possibility that, through further mergers of drug companies, we 
will see the sick and dying extorted even more than they are today with 
skyrocketing prices that are made even worse when these mergers occur.
  If this motion passes, it won't kill the bill or slow it down a 
moment.
  What it will do is to give life to an effort to contain these mergers 
and see that prescription prices don't soar even further. Yes, it is 
not the principal issue on drug prices. Unfortunately, there is no 
wonder drug to stop prescription price gouging, but this is one of the 
only ways to get the issue to the floor of this House because our 
Republican colleagues in every committee are determined to remain 
silent and see no action whatsoever.
  I continue to hear from my neighbors back in Texas who care about 
this a lot more than my Republican colleagues. They tell me they cannot 
afford their prescriptions or they are burdened with immense debt to do 
it.
  I think of Elaine in San Antonio, who has suffered with glaucoma for 
a number of years. She is fighting to save her eyesight, but now her 
copays on three different necessary drops are costing $400, $227, $178 
per month. She says she wants to finish her senior years in dignity but 
is burdened down by these outrageous prices.
  The choice should not be blindness or rent for a senior who has 
worked and saved all their lifetime.
  Even in the face of the opioid epidemic, where we are about to hear 
about a whole lot of bills on the floor that don't do a whole lot, but 
in the face of that crisis, a devastating national public health 
emergency, the price of naloxone, a lifesaving overdose reversal drug, 
has been spiked by almost 600 percent.
  Even an effective drug is 100 percent ineffective when it is 
unaffordable.
  Too many drugs are ineffective for too many people because drug 
prices have soared at a rate of ten times the rate of inflation. But 
where some see a crisis like that, others see a revenue opportunity.
  Brand name pharmaceutical manufacturers rely upon government-approved 
monopolies to charge monopoly prices, whatever they can get out of the 
sick and dying. They utilize as many maneuvers as possible to 
perpetuate their monopolies as long as possible while pouring their 
money, not into research and development of new drugs, but into 
lobbying this Congress and the administration.
  Drug manufacturers spent $171 million last year in Federal lobbying, 
more than insurance, oil and gas, electronics, or any other industries. 
They had more lobbyists than we had Members of Congress. In fact, they 
could have a two-on-one defense to assure that this Congress is quiet, 
it is inactive, it is unresponsive to people.
  Let's pass this motion and ensure that when the pharmaceutical 
companies use the $80 billion tax windfall, that they were just 
rewarded by the Republicans to pay for more mergers, that consumers 
don't get caught in the middle and see their prices spike even further.
  We need to commit ourselves to action by approving this motion to 
recommit, to commit ourselves to putting consumers first over Big 
Pharma.
  Mr. Speaker, I yield back the balance of my time.
  Mr. GOODLATTE. Mr. Speaker, I claim the time in opposition to the 
motion.
  The SPEAKER pro tempore. The gentleman from Virginia is recognized 
for 5 minutes.
  Mr. GOODLATTE. Mr. Speaker, this motion is unnecessary because this 
bill does nothing to undermine substantive antitrust enforcement. It 
might even hold up mergers that the court already found procompetitive 
and could help lower drug prices.
  This is simply a dilatory tactic used by my friends on the other side 
of the aisle to hold up this important legislation.
  For decades, American antitrust laws have been a shining example of 
how to protect against anticompetitive activities in a consistent, 
predictable, and fair manner.
  Other countries have looked to our laws as the template for the 
creation of their own competition laws. Let us continue to be a model 
of proper antitrust enforcement.
  The SMARTER Act is a commonsense process reform that ensures fairness 
and parity in the narrow field of merger reviews. The bill was 
recommended to Congress by a bipartisan commission and is supported by 
former top antitrust enforcement officials and past and present FTC 
Commissioners of both political parties.
  Mr. Speaker, accordingly, I urge my colleagues to do the smart thing 
by opposing this bill and supporting the underlying bill.
  Mr. Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore (Mr. Kustoff of Tennessee). Without 
objection, the previous question is ordered on the motion to recommit.
  There was no objection.
  The SPEAKER pro tempore. The question is on the motion to recommit.
  The question was taken; and the Speaker pro tempore announced that 
the noes appeared to have it.
  Mr. DOGGETT. Mr. Speaker, on that I demand the yeas and nays.
  The yeas and nays were ordered.
  The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further 
proceedings on this question will be postponed.

                          ____________________