GOP Senator Weighs FTC Merger Review Changes

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By Alexei Alexis

Sen. Jerry Moran (R-Kan.) is studying the Federal Trade Commission’s merger review process as part of a broader look at potential changes at the agency.

Moran, who chairs the Senate Commerce Committee’s Subcommittee on Consumer Protection, is considering ways to streamline the FTC in light of the business community’s concerns that some of the agency’s practices are too burdensome. The effort is the latest signal that Republicans are paying attention to business concerns about the FTC and could be gearing up to pressure the agency to make changes or ask future nominees about the issues.

Any FTC nominees from President Donald Trump will go through the Commerce Committee. There are currently three open slots on the commission. A bill to overhaul the FTC’s merger process is already moving in the House.

Harmonize With DOJ?

Moran recently wrote to practitioners who testified at a Sept. 26 subcommittee hearing asking them whether it makes sense to harmonize the merger review procedures at the FTC and Department of Justice, Moran spokesman Tom Brandt told Bloomberg BNA. The four appeared at a hearing about potential improvements to the FTC.

“We submitted the question to all four witnesses from the hearing and are awaiting responses,” he said, declining to elaborate on potential next steps.

Moran’s question read, “Government lawsuits seeking to stop mergers are litigated using different procedures depending on whether the FTC or the Department of Justice handles the case. Should Congress take action to ensure that the two agencies follow the same procedures in such cases?”

The people to whom Moran posed this question include three former directors of the FTC’s Bureau of Consumer Protection — William MacLeod, Lydia Parnes, and Jessica Rich. MacLeod is now a partner at Kelly Drye, Parnes is a partner at Wilson Sonsini Goodrich & Rosati, and Rich is the vice president of policy and mobilization at Consumers Union. TechFreedom President Berin Szoka is also on the list.

Currently, the FTC may pursue administrative litigation against a proposed merger after a court has denied a preliminary injunction request from the agency. DOJ, by contrast, is limited to seeking a court injunction if it wants to stop a transaction.

A House bill (H.R. 659), introduced by Rep. Blake Farenthold (R-Texas), would require the FTC to adopt DOJ’s approach. The House Judiciary Committee approved the bill in April on a 16-10 vote, with Democrats opposing.

Question for Nominees

At the Senate hearing, Moran gave no clues as to whether he might be preparing to introduce or cosponsor some kind of FTC overhaul bill. However, the subcommittee’s review of the agency might tee up issues for the committee’s consideration of Trump’s yet-to-be-named FTC nominees.

“As we look ahead to the White House’s nominations of candidates to serve as FTC commissioners, it is especially important for this committee to provide a forum to address these issues,” Moran said.

House Republicans say Farentholt’s bill would provide greater certainty to the business community by ensuring that companies face the same standards and processes regardless of which federal agency reviews a merger. But Democrats argue that it would unnecessarily weaken the FTC.

The measure, which enjoys strong support from the U.S. Chamber of Commerce, is still waiting for a vote from the full House. Similar legislation was approved by the House in the previous Congress, but it died in the Senate.

The House and Senate efforts come at a time when Democrats and public interest groups want the FTC to be more proactive. At the hearing by Moran’s subcommittee, Democrats were particularly vocal about the need for legislative action in the wake of credit reporting service Equifax Inc.’s massive data breach. Sen. Ed Markey (D-Mass.) is pushing legislation to expand the FTC’s data protection powers.

Democrats also want to see tougher antitrust enforcement. Sen. Amy Klobuchar (D-Minn.) has introduced a bill (S. 1812) to overhaul how mergers are reviewed by requiring companies to prove their mega-deals are good for competition. Consumers Union is among the supporters of the legislation.

“It’s time to look closely at this area,” Rich said at the hearing, during an exchange with Klobuchar. Sen. Richard Blumenthal (D-Conn.), the subcommittee’s top Democrat, is among the cosponsors of Klobuchar’s legislation.

To contact the reporter on this story: Alexei Alexis in Washington at aalexis@bna.com

To contact the editor responsible for this story: Fawn Johnson at fjohnson@bna.com

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