We’ve been speaking in a recent series of posts about the merger review process and some general ways to make it more efficient so that less time and resources are wasted. As we noted last time, one of the features of the review process is that either the Department of Justice or the Federal Trade Commission can handle a review.
Because both agencies use different process to scrutinize merger and acquisition proposals, and use different legal standards as well, the review process is not as standardized as it could be. Under the proposal, the same standards and processes would be used by both agencies in the review process. The proposal, it has been argued, would help ensure that the review process functions as smoothly and simply as possible.
Some concerns have been raised about the proposal. Specifically, it has been objected that, because the bill would make the Federal Trade Commission like the Department of Justice for purposes of merger review, the FTC’s independence could be weakened. This, in turn, would raise the risk that the merger review process is not as insulated from political influence as it should be.
It remains to be seen whether the proposal will ultimately be adopted, of course. It is still in the early stages of consideration, and much could happen. Any changes in the merger review process, though, would mean that companies going forward would need guidance about how the process works, how to engage it most efficiently, and how to navigate and issues that arise in the process.