I 

115TH CONGRESS 

1ST SESSION H. R. 4538 

To require the Attorney General and the Federal Trade Commission to 

conduct regular merger retrospective reviews of the economic effects 

of mergers to which section 7A of the Clayton Act applies. 

IN THE HOUSE OF REPRESENTATIVES 

DECEMBER 4, 2017 

Mr. ELLISON (for himself, Mr. KHANNA, Mr. CICILLINE, Mr. POCAN, Mr. 

NOLAN, Ms. JAYAPAL, and Mr. GRIJALVA) introduced the following bill; 

which was referred to the Committee on the Judiciary 

A BILL 

To require the Attorney General and the Federal Trade 

Commission to conduct regular merger retrospective reviews of the economic effects of mergers to which section 

7A of the Clayton Act applies. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Merger Retrospective 

5 Act of 2017’’. 


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1 SEC. 2. REQUIRED REVIEWS OF THE ECONOMIC EFFECTS 

2 OF MERGERS. 

3 (a) REQUIRED REVIEWS.—The Attorney General and 

4 the Federal Trade Commission shall each conduct annu5 ally no fewer than 5 retrospective reviews of the economic 

6 effects of mergers to which section 7A of the Clayton Act 

7 (15 U.S.C. 18a) applies and which have been resolved by 

8 each agency. The decision of which mergers are evaluated 

9 will be made by the each agency in conjunction with the 

10 advice and agreement of the Chief Economist of the Gov11 ernment Accountability Office. That individual will report 

12 on the process and certify that the choices of mergers sat13 isfy the criteria of objectivity, importance, and comprehen14 siveness. 

15 (b) CONTENT OF REVIEWS.—The reviews conducted 

16 under subsection (a) shall assess the effects of each merg17 er on— 

18 (1) the price and quality of products and serv19 ices affected by the merger; 

20 (2) the effectiveness of any divestitures or 

21 merger conditions in preserving competition in the 

22 affected markets; 

23 (3) any facility closures or other reductions in 

24 actual or planned capacity, or in employment; 

25 (4) investment in research and development; 


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1 (5) average salary and employment benefits of 

2 the top 1 percent, the median, and the lowest 10 

3 percent of individuals employed by each party to the 

4 merger before the merger and by the entity resulting 

5 from the merger; and 

6 (6) contractual terms applicable before and 

7 after the merger to officers and employees of each 

8 party to the merger with respect to forced arbitra9 tion clauses, noncompete agreements, and class-ac10 tion lawsuit waivers. 

11 (c) TIME PERIOD FOR REVIEWS.—Each merger re12 view required by this Act shall be completed not later than 

13 3 years after the merger is consummated, or 3 years after 

14 the effective date of this Act, whichever is later. 

15 (d) PUBLICATION OF REVIEW RESULTS.—The Attor16 ney General and the Federal Trade Commission shall pub17 lish on their respective websites in a timely manner the 

18 results of the reviews conducted under subsection (a) to19 gether with as much nonconfidential data and information 

20 that allow the public to evaluate the reviews. The chief 

21 economist of the General Accountability Office shall attest 

22 to the quality and objectivity of the study. 

23 SEC. 3. POSTMERGER DATA. 

24 Section 7A of the Clayton Act (15 U.S.C. 18a) is 

25 amended by adding at the end the following: 


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1 ‘‘(l)(1) Each person who enters into an agreement 

2 with the Federal Trade Commission or the United States 

3 to resolve a proceeding brought under the antitrust laws 

4 or under the Federal Trade Commission Act (15 U.S.C. 

5 41 et seq.) regarding an acquisition with respect to which 

6 notification is required under this section shall, upon re7 quest from the Federal Trade Commission or the Assist8 ant Attorney General, submit to the Federal Trade Com9 mission or the Assistant Attorney General, as applicable, 

10 information necessary to aid the requesting agency in its 

11 retrospective review of the economic effects of the trans12 action as required by the Merger Retrospective Act of 

13 2017. 

14 ‘‘(2) The Federal Trade Commission, with the con15 currence of the Assistant Attorney General, by rule issued 

16 in accordance with section 553 of title 5, United States 

17 Code, and consistent with the purposes of this section shall 

18 require that the information described in paragraph (1) 

19 be in such form and contain such documentary material 

20 and information relevant to a completed acquisition as is 

21 necessary and appropriate to enable the Federal Trade 

22 Commission and the Assistant Attorney General to assess 

23 the competitive impact of the acquisition under paragraph 

24 (1).’’. 


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1 SEC. 4. EFFECTIVE DATE; APPLICATION OF ACT. 

2 (a) EFFECTIVE DATE.—This Act shall take effect 

3 180 days after the date of the enactment of this Act. 

4 (b) APPLICATION OF ACT.—This Act shall apply with 

5 respect to— 

6 (1) mergers that occurred less than 2 years be7 fore the date of the enactment of this Act; and 

8 (2) mergers that occur on or after the date of 

9 the enactment of this Act. 

10 (c) ATTORNEY GENERAL.—In order to promote 

11 transparency in merger enforcement, the Federal Trade 

12 Commission and the Attorney General shall publish no less 

13 frequently than every 2 years a report on the numbers 

14 of their investigations and enforcement actions with re15 spect to horizontal mergers in the preceding 2 years. This 

16 report should provide summary data on investigations and 

17 actions by level of and change in concentration, number 

18 of remaining significant competitors, and ease of entry in 

19 the relevant markets. 

20 (d) AUTHORIZATION OF APPROPRIATIONS.— 

21 (1) IN GENERAL.—To carry out the amend22 ments made by this Act, there is authorized to be 

23 appropriated $2,000,000 for each of fiscal years 

24 2018 through 2022. 


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1 (2) AVAILABILITY OF FUNDS.—Funds appro2 priated to carry out such amendment shall remain 

3 available for a period of 2 fiscal years. 

Æ 


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