II 

117TH CONGRESS 

2D SESSION S. 3847 

To prohibit certain anticompetitive mergers, to amend the Clayton Act to 

permit the Federal Trade Commission and the Department of Justice 

to reject proposed acquisitions, to implement procedures for retrospective 

reviews and breaking up anticompetitive consummated acquisitions, and 

for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MARCH 16, 2022 

Ms. WARREN (for herself, Mr. BOOKER, Mr. SANDERS, Ms. BALDWIN, Mr. 

SCHATZ, Mr. WHITEHOUSE, Mr. BLUMENTHAL, Mr. MERKLEY, and Mr. 

MARKEY) introduced the following bill; which was read twice and referred 

to the Committee on the Judiciary 

A BILL 

To prohibit certain anticompetitive mergers, to amend the 

Clayton Act to permit the Federal Trade Commission 

and the Department of Justice to reject proposed acquisitions, to implement procedures for retrospective reviews 

and breaking up anticompetitive consummated acquisitions, and for other purposes. 

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 ‘‘Prohibiting Anti5 competitive Mergers Act of 2022’’. 


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1 SEC. 2. FINDINGS AND PURPOSES. 

2 (a) FINDINGS.—Congress finds that— 

3 (1) the Constitution of the United States pro4 hibits political or economic oligarchies, which are in5 compatible with a republican form of government; 

6 (2) the antitrust laws, including the Sherman 

7 Act (15 U.S.C. 1 et seq.), the Clayton Act (15 

8 U.S.C. 12 et seq.), and the Federal Trade Commis9 sion Act (15 U.S.C. 41 et seq.), were enacted to pro10 hibit political and economic oligarchies, to protect 

11 fair, open, and competitive markets, and to prevent 

12 corporations from abusing their power to stifle com13 petition and improperly influence democratic proc14 esses; 

15 (3) Federal courts have misinterpreted the anti16 trust laws to the detriment of consumers, workers, 

17 society, and the United States political economy, in18 cluding by enhancing the misguided and narrowly 

19 defined ‘‘consumer welfare standard,’’ as described 

20 by the Supreme of the United States in Reiter v. 

21 Sonotone Corp., 442 U.S. 330 (1979), and its prog22 eny; 

23 (4) concentrated economic power creates con24 centrated political power, allowing giant corporations 

25 to invest growing sums of money into influencing 

26 government to tilt laws and rules in their favor; 


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1 (5) over the last 4 decades, powerful corpora2 tions have unconstitutionally amassed too much in3 fluence over the United States economy, stifling 

4 competition in United States markets and harming 

5 workers, consumers, customer choice, sellers, small 

6 and minority-owned businesses (including farms and 

7 ranches), local, rural, and low-income communities, 

8 communities of color, privacy, quality, entrepreneur9 ship, and innovation; 

10 (6) in 1975, 109 companies pocketed half of all 

11 profits generated by firms in the United States 

12 whereas in 2015, the top 30 firms did so; 

13 (7) startup rates fell by more than half over the 

14 last 4 decades in industries that saw an increase in 

15 concentration; 

16 (8) dominant corporations, which often under17 invest in their operations and infrastructure, expose 

18 consumers in the United States to the risks of con19 centrated and brittle supply chains, such as short20 ages of essential goods and increased prices; 

21 (9) market concentration in essential markets, 

22 including those for medical equipment, food, and re23 tail, can pose serious national-security risks during 

24 crisis events such as the COVID–19 pandemic; 


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1 (10) market concentration is associated with 

2 lower wages, and evidence shows that in more con3 centrated markets, giant corporations are less likely 

4 to pass on productivity gains to workers in the form 

5 of higher wages and more likely to engage in 

6 antiworker labor practices, which disproportionately 

7 harm female workers and workers of color; 

8 (11) corporate consolidation has especially 

9 harmed rural communities, low-income communities, 

10 and communities of color, as demonstrated by the 

11 impact of the recent Sprint and T-Mobile merger on 

12 low-income customers who purchase prepaid plans; 

13 (12) Federal agencies other than the Federal 

14 Trade Commission and the Department of Justice 

15 may have particular expertise with respect to the 

16 competitive effects of an acquisition and should play 

17 a stronger role in antitrust enforcement; 

18 (13) State attorneys general may have critical 

19 local knowledge or regional concerns about the com20 petitive effects of an acquisition and should play a 

21 stronger role in antitrust enforcement; 

22 (14) section 7A of the Clayton Act (15 U.S.C. 

23 18a) (referred to in this section as ‘‘section 7A’’) 

24 was enacted to allow the antitrust agencies to review 

25 acquisitions before consummation; 


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1 (15) the recent explosion of filings under sec2 tion 7A has overwhelmed the Federal Trade Com3 mission and the Department of Justice, a phe4 nomenon exacerbated by strict statutory deadlines 

5 for the review process and an onerous judicial proc6 ess to obtain injunctions to block acquisitions likely 

7 to lessen competition; 

8 (16) the antitrust agencies should be empow9 ered to reject acquisitions that they review under 

10 section 7A, and those decisions should be treated as 

11 reviewable agency actions; 

12 (17) the use of structural and behavioral rem13 edies to protect competition and prevent monopo14 listic behavior has proven ineffective across various 

15 industries; 

16 (18) the Federal Trade Commission and the 

17 Department of Justice have the authority under ex18 isting law to conduct retrospective reviews of any 

19 consummated acquisition at any time, regardless of 

20 whether the acquisition was nonreportable or the 

21 government opposed the acquisition before its con22 summation; 

23 (19) because some data about the competitive 

24 effects of an acquisition will necessarily emerge after 

25 consummation, it is critical that the Federal Trade 


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1 Commission and the Department of Justice conduct 

2 retrospective reviews of acquisitions in order to rem3 edy anticompetitive acquisitions, including through 

4 unwinding; 

5 (20) an acquisition may have competitive effects 

6 in markets beyond the lines of commerce of the 

7 transaction, particularly when a party has an exten8 sive business ecosystem; and 

9 (21) excessive market concentration must be 

10 remedied to restore and protect competition in the 

11 United States and ensure the United States econ12 omy and democracy benefit workers, consumers, cus13 tomer choice, sellers, small and minority-owned busi14 nesses (including farms and ranches), local, rural, 

15 and low-income communities, communities of color, 

16 privacy, quality, entrepreneurship, and innovation. 

17 (b) PURPOSES.—The purposes of this Act are to— 

18 (1) ban the most anticompetitive acquisitions; 

19 (2) restore and protect the competitive process; 

20 (3) amend section 7A to empower the antitrust 

21 agencies to reject acquisitions before consummation 

22 through agency action; 

23 (4) reduce the burdens of contemporary merger 

24 litigation placed on Federal and State officials; 


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1 (5) establish a greater role for Federal agencies 

2 and State attorneys general in the merger-review 

3 process; 

4 (6) establish procedures for retrospective re5 views; 

6 (7) break up acquisitions consummated during 

7 the 21st century that have lessened competition and 

8 harmed the competitive process; 

9 (8) ensure that the structure of the United 

10 States economy is competitive and fair in order to 

11 safeguard the nation against economic and political 

12 oligarchies; and 

13 (9) uphold the mandate in the Constitution of 

14 the United States to promote a flourishing democ15 racy by promoting meaningful competition through16 out all segments of the United States economy. 

17 SEC. 3. DEFINITIONS. 

18 The first section of the Clayton Act (15 U.S.C. 12) 

19 is amended by striking subsections (a) and (b) and insert20 ing the following: 

21 ‘‘SECTION 1. DEFINITIONS; SHORT TITLE. 

22 ‘‘(a) DEFINITIONS.—In this Act: 

23 ‘‘(1) ACQUISITION.—The term ‘acquisition’ 

24 means— 

25 ‘‘(A) any merger; 


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1 ‘‘(B) any direct or indirect acquisition of 

2 the whole or any part of the assets, stock, or 

3 other share capital or the use of such stock by 

4 the voting or granting of proxies or otherwise; 

5 or 

6 ‘‘(C) any tender offer, joint venture, deal, 

7 or other similar transaction subject to section 7 

8 or 7A. 

9 ‘‘(2) ANTITRUST AGENCY.—The term ‘antitrust 

10 agency’ means— 

11 ‘‘(A) the Federal Trade Commission; or 

12 ‘‘(B) the Antitrust Division of the Depart13 ment of Justice. 

14 ‘‘(3) ANTITRUST LAWS.—The term ‘antitrust 

15 laws’ means— 

16 ‘‘(A) the Sherman Act (15 U.S.C. 1 et 

17 seq.); 

18 ‘‘(B) the Federal Trade Commission Act 

19 (15 U.S.C. 41 et seq.); 

20 ‘‘(C) this Act; and 

21 ‘‘(D) any other similar Federal or State 

22 law designed or intended to prohibit, restrict, or 

23 regulate actions having the purpose or effect of 

24 monopolization, restraint of trade, or lessening 


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1 competition (including through merger or acqui2 sition). 

3 ‘‘(4) CRITICAL TRADING PARTNER.—The term 

4 ‘critical trading partner’ means a person that has 

5 the ability to restrict, impede, or foreclose access to 

6 its inputs, customers, partners, goods, services, tech7 nology, platform, facilities, or tools in a way that 

8 harms the competitive process or limits the ability of 

9 the customers or suppliers of the person to carry out 

10 business effectively. 

11 ‘‘(5) DISQUALIFYING BEHAVIOR.—The term 

12 ‘disqualifying behavior’ means— 

13 ‘‘(A) violating an order issued by an anti14 trust agency; 

15 ‘‘(B) entering into any nonprosecution 

16 agreement or deferred prosecution agreement 

17 with the Department of Justice; 

18 ‘‘(C) paying a fine, penalty, or settlement 

19 (including class-action settlements) exceeding 

20 $1,000,000 to an antitrust agency, a State or 

21 county, or private party if the underlying dis22 pute is based on a violation of antitrust law; 

23 ‘‘(D) being convicted of any felony by a 

24 State court or court of the United States; or 


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1 ‘‘(E) being found liable for violating any 

2 antitrust law by a State court or court of the 

3 United States. 

4 ‘‘(6) DOMINANT FIRM.—The term ‘dominant 

5 firm’ means a person that— 

6 ‘‘(A) has annual revenues exceeding 

7 $5,000,000,000 (as adjusted and published for 

8 each fiscal year beginning after September 30, 

9 2022, in the same manner as provided in sec10 tion 8(a)(5) to reflect the percentage change in 

11 the gross national product for such fiscal year 

12 compared to the gross national product for the 

13 year ending September 30, 2021); 

14 ‘‘(B) is a financial institution, an equity 

15 fund, or a registered investment adviser under 

16 section 203 of the Investment Advisers Act of 

17 1940 (15 U.S.C. 80b–3), if the party or the ul18 timate parent entity of such party has greater 

19 than $10,000,000,000 (as so adjusted and pub20 lished) in capitalization, commitments, or assets 

21 under management; or 

22 ‘‘(C) has greater than 20 percent of any 

23 relevant market. 


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1 ‘‘(7) FAILING-FIRM DEFENSE.—The term ‘fail2 ing-firm defense’ means a defense that an acquisi3 tion is unlikely to be anticompetitive because— 

4 ‘‘(A) the party being acquired is in danger 

5 of immediate insolvency; 

6 ‘‘(B) the party being acquired is not able 

7 to reorganize successfully under chapter 11 of 

8 title 11, United States Code; 

9 ‘‘(C) the party being acquired has made 

10 unsuccessful good-faith efforts to elicit reason11 able alternative offers that would keep the as12 sets of the party in the relevant markets and 

13 pose a less severe danger to competition than 

14 does the proposed acquisition; and 

15 ‘‘(D) the acquiring party is the only avail16 able purchaser. 

17 ‘‘(8) LABOR MARKET.—The term ‘labor market’ 

18 includes— 

19 ‘‘(A) commuting zones, as defined by the 

20 Department of Agriculture; 

21 ‘‘(B) the 6-digit Standard Occupational 

22 Classification codes for a particular job classi23 fication; and 


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1 ‘‘(C) other definitions as the Federal 

2 Trade Commission and the Department of Jus3 tice may promulgate by regulation. 

4 ‘‘(9) NONREPORTABLE ACQUISITION.—The 

5 term ‘nonreportable acquisition’ means any acquisi6 tion for which the parties are not required to file no7 tification under section 7A. 

8 ‘‘(10) PARTY.—The term ‘party’ means, for a 

9 given acquisition, a person required to file notifica10 tion under section 7A. 

11 ‘‘(11) PERSON.—The term ‘person’ has the 

12 meaning given the term in section 8 of the Sherman 

13 Act (15 U.S.C. 7). 

14 ‘‘(12) PLATFORM.—The term ‘platform’ means 

15 any person’s website, online or mobile application, 

16 operating system, digital assistant, online adver17 tising exchange, or online service that— 

18 ‘‘(A) operates or provides the main inter19 face between different users or market partici20 pants, such as individuals, advertisers, or pro21 viders of content, services, and goods; and 

22 ‘‘(B) allows for exchanges of at least some 

23 goods, services, or content that the person does 

24 not own. 


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1 ‘‘(13) PLATFORM CONFLICT OF INTEREST.— 

2 The term ‘platform conflict of interest’ means the 

3 conflict of interest that arises when a person owns 

4 or controls a platform while simultaneously— 

5 ‘‘(A) owning or controlling a line of busi6 ness that competes against third parties on that 

7 platform, if the person has the ability and in8 centive to, or does, advantage its own business 

9 on the platform over third-party competitors on 

10 the platform or disadvantage the business of 

11 third-party competitors on the platform; or 

12 ‘‘(B) representing both buyers and sellers 

13 for transactions or business on the platform. 

14 ‘‘(14) PROHIBITED MERGER.—The term ‘pro15 hibited merger’ means an acquisition— 

16 ‘‘(A) in which— 

17 ‘‘(i) the Herfindahl-Hirschman Index 

18 would be greater than 1,800 in any rel19 evant market; and 

20 ‘‘(ii) the increase in the Herfindahl21 Hirschman Index would be more than 100 

22 in such relevant market; 

23 ‘‘(B) in which the acquiring person would 

24 have a market share of greater than 33 percent 

25 of any relevant market (excluding labor marVerDate Sep 11 2014 03:40 Mar 17, 2022 Jkt 029200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S3847.IS S3847

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1 kets) or greater than 25 percent of any labor 

2 market as an employer; or 

3 ‘‘(C) that would result in the acquiring 

4 person holding an aggregate total amount of 

5 the voting securities and assets of the acquired 

6 person in excess of $5,000,000,000 (as so ad7 justed and published). 

8 ‘‘(15) RELEVANT AGENCY.—The term ‘relevant 

9 agency’ means the Office of Advocacy of the Small 

10 Business Administration, the Minority Business De11 velopment Agency of the Department of Commerce, 

12 the National Labor Relations Board, any Federal 

13 agency required to review an acquisition under Fed14 eral law, or any Federal agency with substantial reg15 ulatory authority over a party involved in an acquisi16 tion (including persons or financial institutions in17 volved with financing the acquisition) as identified 

18 by the parties, the Federal Trade Commission, or 

19 the Assistant Attorney General. 

20 ‘‘(16) RELEVANT MARKET.—The term ‘relevant 

21 market’— 

22 ‘‘(A) means any line of commerce, product 

23 market, service market, or labor market impli24 cated by an acquisition; and 


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1 ‘‘(B) includes a geographic area if geog2 raphy limits the willingness or ability— 

3 ‘‘(i) of some customers to substitute 

4 some products; 

5 ‘‘(ii) of some suppliers to serve some 

6 customers; or 

7 ‘‘(iii) of some workers to provide 

8 labor. 

9 ‘‘(17) STATE ATTORNEY GENERAL.—The term 

10 ‘State attorney general’ has the meaning given the 

11 term in section 4G. 

12 ‘‘(18) ULTIMATE PARENT ENTITY.—The term 

13 ‘ultimate parent entity’ has the meaning given the 

14 term in section 801.1 of title 16, Code of Federal 

15 Regulations. 

16 ‘‘(b) SHORT TITLE.—This Act may be cited as the 

17 ‘Clayton Act’.’’. 

18 SEC. 4. BANNING ALL PROHIBITED MERGERS AND 

19 STRENGTHENING ANTITRUST AGENCY EN20 FORCEMENT. 

21 (a) BANNING ALL PROHIBITED MERGERS.—Section 

22 7 of the Clayton Act (15 U.S.C. 18) is amended— 

23 (1) in the first and second undesignated para24 graphs, by striking ‘‘lessen competition, or to tend 

25 to create a monopoly’’ each place the term appears 


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1 and inserting ‘‘harm the competitive process, or cre2 ate or help maintain a monopoly, a monopsony, mar3 ket power, or unfair methods of competition’’; 

4 (2) in the first, second, and third undesignated 

5 paragraph, by inserting ‘‘(including labor)’’ after 

6 ‘‘any activity affecting commerce’’ each place the 

7 term appears; and 

8 (3) by adding at the end the following: 

9 ‘‘Any prohibited merger shall be unlawful under 

10 this section. 

11 ‘‘Neither quantitative evidence nor a definition 

12 of a relevant market or market share shall be re13 quired to establish a violation under this section. 

14 ‘‘Harms to the competitive process include the 

15 harms described in section 7A.’’. 

16 (b) STRENGTHENING ANTITRUST AGENCY ENFORCE17 MENT.— 

18 (1) MANDATORY HSR FILINGS.—Section 7A(a) 

19 of the Clayton Act (15 U.S.C. 18a(a)) is amended— 

20 (A) in the matter preceding paragraph (1), 

21 by inserting ‘‘, subject to subsection (b),’’ be22 fore ‘‘the waiting’’; 

23 (B) in paragraph (1), by striking ‘‘and’’ at 

24 the end; 


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1 (C) in paragraph (2)(B)(ii)(III), by strik2 ing the period at the end and inserting ‘‘; and’’; 

3 and 

4 (D) by inserting after paragraph 

5 (2)(B)(ii)(III) the following: 

6 ‘‘(3)(A) as a result of such acquisition, the ac7 quiring person would hold an aggregate total 

8 amount of the voting securities and assets of the ac9 quired person of $50,000,000 (as so adjusted and 

10 published) or more; and 

11 ‘‘(B) the acquiring person, or the person whose 

12 voting securities or assets are being acquired— 

13 ‘‘(i) has annual revenues in excess of 

14 $5,000,000,000 (as so adjusted and published); 

15 or 

16 ‘‘(ii) is a financial institution, an equity 

17 fund, or a registered investment adviser under 

18 section 203 of the Investment Advisers Act of 

19 1940 (15 U.S.C. 80b–3), if the person or the 

20 ultimate parent entity of the person has greater 

21 than $10,000,000,000 (as so adjusted and pub22 lished) in capitalization, commitments, or assets 

23 under management.’’. 


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1 (2) EMPOWERING THE ANTITRUST AGENCIES

2 TO REJECT ACQUISITIONS.—Section 7A of the Clay3 ton Act (15 U.S.C. 18a) is amended— 

4 (A) in subsection (b)— 

5 (i) in paragraph (1)(B)— 

6 (I) by striking ‘‘thirtieth’’ and in7 serting ‘‘120th’’; and 

8 (II) by striking ‘‘fifteenth’’ and 

9 inserting ‘‘60th’’; and 

10 (ii) in paragraph (2), by striking ‘‘the 

11 Assistant’’ and all that follows through the 

12 period at the end and inserting ‘‘on dem13 onstration of an emergency may, in indi14 vidual cases, terminate the waiting period 

15 specified in paragraph (1) and allow any 

16 person to proceed with any acquisition sub17 ject to this section, upon a vote of the Fed18 eral Trade Commission or approval of the 

19 Assistant Attorney General, and promptly 

20 shall cause to be published in the Federal 

21 Register a notice that details the justifica22 tion of such decision. The waiting period 

23 may not be terminated under this para24 graph without the approval of all relevant 


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1 agencies and States that have received ma2 terials pursuant to subsection (l).’’; 

3 (B) in subsection (e), by adding at the end 

4 the following: 

5 ‘‘(3) No person shall acquire, directly or indi6 rectly, any voting securities or assets of another per7 son under subsection (a) unless— 

8 ‘‘(A)(i) the waiting period expires or is ter9 minated; and 

10 ‘‘(ii) the Federal Trade Commission or the 

11 Assistant Attorney General has not rejected the 

12 acquisition; or 

13 ‘‘(B) an appropriate court issues a final, 

14 nonappealable order reversing the decision of 

15 the Federal Trade Commission or the Assistant 

16 Attorney General to reject the acquisition. 

17 ‘‘(4)(A) Not later than 15 days after the date 

18 on which the Federal Trade Commission and the As19 sistant Attorney General receive a notification filed 

20 under subsection (a), the Federal Trade Commission 

21 and the Assistant Attorney General shall determine 

22 whether the Federal Trade Commission or the As23 sistant Attorney General shall review the acquisition, 

24 which shall be publicly announced. 


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1 ‘‘(B) If no decision is made under subpara2 graph (A) before the expiration of the 15-day period, 

3 the Federal Trade Commission shall review the ac4 quisition, which shall be publicly announced. 

5 ‘‘(5) Not later than 120 days after the date on 

6 which the Federal Trade Commission and the As7 sistant Attorney General receive a notification filed 

8 under subsection (a), the Federal Trade Commission 

9 or the Assistant Attorney General shall determine 

10 whether to reject the acquisition. 

11 ‘‘(6)(A) The Federal Trade Commission or the 

12 Assistant Attorney General shall provide— 

13 ‘‘(i) an opportunity for public comment 

14 during the 60-day period beginning on the date 

15 on which a public announcement is made under 

16 paragraph (4); and 

17 ‘‘(ii) the public with— 

18 ‘‘(I) notice of a notification filed 

19 under subsection (a); and 

20 ‘‘(II) a summary of all documentary 

21 material and information described in sub22 section (d). 

23 ‘‘(B) The Federal Trade Commission or the As24 sistant Attorney General shall consider any public 


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1 comments submitted under this paragraph before 

2 making a determination under paragraph (5). 

3 ‘‘(7)(A) Harms to the competitive process may 

4 include, without limitation, harms to workers (in5 cluding significant layoffs or harms to existing col6 lective bargaining agreements, retirees, worker bene7 fits and compensation, or labor conditions), con8 sumers (including patients, renters, and students), 

9 customer choice, sellers, small or minority-owned 

10 businesses (including farms and ranches), local, 

11 rural, or low-income communities, communities of 

12 color, privacy, quality (including health and safety), 

13 entrepreneurship, or innovation. 

14 ‘‘(B) When evaluating whether an acquisition is 

15 likely to harm the competitive process, the Federal 

16 Trade Commission or the Assistant Attorney Gen17 eral shall consider— 

18 ‘‘(i) effects in any relevant market (includ19 ing labor markets), cross-market effects or im20 pacts on the lines of commerce of the parties 

21 beyond any relevant markets, impacts through22 out the supply chains or business ecosystems of 

23 the parties, and impacts on small or minority24 owned businesses (including farms and 


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1 ranches), local, rural, or low-income commu2 nities, and communities of color; and 

3 ‘‘(ii) the history of— 

4 ‘‘(I) express collusion in any relevant 

5 market; 

6 ‘‘(II) acquisitions by a party in any 

7 relevant market during the preceding 5- 

8 year period; and 

9 ‘‘(III) any anticompetitive effects that 

10 followed previous acquisitions of the par11 ties, including— 

12 ‘‘(aa) increased prices for con13 sumers; 

14 ‘‘(bb) reduced wages for workers; 

15 ‘‘(cc) reductions in safety for 

16 consumers or workers; 

17 ‘‘(dd) increased injuries or deaths 

18 for consumers or workers; 

19 ‘‘(ee) bankruptcy or financial dis20 tress of acquired companies; 

21 ‘‘(ff) significant worker layoffs; 

22 and 

23 ‘‘(gg) reduced investments in re24 search and development. 


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1 ‘‘(C) The Federal Trade Commission or the As2 sistant Attorney General may determine that the ac3 quisition is likely to harm the competitive process if 

4 the history described in subparagraph (B)(ii) is sig5 nificant or extensive. 

6 ‘‘(D) When evaluating an acquisition for which 

7 any party (or its ultimate parent entity) is a domi8 nant firm, the Federal Trade Commission or the As9 sistant Attorney General may determine that the ac10 quisition is likely to harm the competitive process 

11 if— 

12 ‘‘(i) another party offers overlapping, com13 peting, or functionally equivalent services or 

14 products; 

15 ‘‘(ii) another party is a nascent competitor 

16 or maverick; 

17 ‘‘(iii) another party is a critical trading 

18 partner in the supply chains or business eco19 systems of the parties; or 

20 ‘‘(iv) the acquisition would create a plat21 form conflict of interest. 

22 ‘‘(8)(A) The decision of the Federal Trade 

23 Commission or the Assistant Attorney General not 

24 to reject an acquisition under subsection (a) shall— 


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1 ‘‘(i) be made publicly available by the date 

2 on which the waiting period expires or is termi3 nated; 

4 ‘‘(ii) include a summary of the review proc5 ess and identify the factors considered in mak6 ing the decision not to reject the acquisition, 

7 which shall include (as relevant or applicable) 

8 the possible harms listed in paragraph (7); 

9 ‘‘(iii) have no precedential value for any 

10 future decisions regarding whether to reject an 

11 acquisition by the same or different persons; 

12 ‘‘(iv) shall not preclude the Federal Trade 

13 Commission, the Assistant Attorney General, or 

14 a State attorney general from investigating the 

15 acquisition, seeking to unwind the acquisition, 

16 or seeking to impose remedies on the parties to 

17 the acquisition at a later date; and 

18 ‘‘(v) shall have no bearing on the legality 

19 of the acquisition if the acquisition is challenged 

20 through judicial proceedings. 

21 ‘‘(B) During the waiting period (or any exten22 sion thereof), neither the Federal Trade Commission 

23 nor the Assistant Attorney General may enter into 

24 any settlement agreement (including commitments 

25 to structural or behavioral remedies) with the parties 


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1 to an acquisition under subsection (a) when deciding 

2 whether to reject the acquisition. 

3 ‘‘(C) If the Federal Trade Commission or the 

4 Assistant Attorney General declines to reject an ac5 quisition under subsection (a) by the end of the 

6 waiting period, the Federal Trade Commission or 

7 the Assistant Attorney General, respectively, may 

8 issue an order requiring the parties to hold their as9 sets separate for a period not to exceed 60 days. 

10 ‘‘(9)(A) The Federal Trade Commission or the 

11 Assistant Attorney General shall reject an acquisi12 tion described in subsection (a) if— 

13 ‘‘(i) the acquisition is a prohibited merger; 

14 ‘‘(ii) the acquisition is likely to harm the 

15 competitive process or create or help maintain 

16 a monopoly, a monopsony, market power, or 

17 unfair methods of competition, as determined 

18 by the Federal Trade Commission or the Assist19 ant Attorney General, respectively; 

20 ‘‘(iii) a party to the acquisition (or its ulti21 mate parent entity)— 

22 ‘‘(I) is a dominant firm; and 

23 ‘‘(II) has consummated 2 or more ac24 quisitions in any relevant market during 

25 the preceding 5-year period; 


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1 ‘‘(iv) a relevant agency objects to the ac2 quisition on the basis of a substantive justifica3 tion as described in subsection (l); 

4 ‘‘(v) during the waiting period or during 

5 the 10-year period ending on the date on which 

6 notification under subsection (a) is filed, a 

7 party to the acquisition engaged in any dis8 qualifying behavior; or 

9 ‘‘(vi) the Federal Trade Commission or the 

10 Assistant Attorney General, respectively, deter11 mines that— 

12 ‘‘(I) all information and documentary 

13 materials have not been supplied; or 

14 ‘‘(II) the supplied information is not 

15 adequately responsive. 

16 ‘‘(B) The decision of the Federal Trade Com17 mission or the Assistant Attorney General to reject 

18 an acquisition under subsection (a) shall— 

19 ‘‘(i) be made publicly available before the 

20 date on which the waiting period expires or is 

21 terminated; 

22 ‘‘(ii) identify which of the 5 categories of 

23 rejection was or were the basis of the decision 

24 and include, as applicable— 


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1 ‘‘(I) a statement explaining why the 

2 acquisition is a prohibited merger; 

3 ‘‘(II) a substantive justification for 

4 the decision, including— 

5 ‘‘(aa) an explanation of how the 

6 acquisition is likely to harm the com7 petitive process or create or help 

8 maintain a monopoly, a monopsony, 

9 market power, or unfair methods of 

10 competition, including (as applicable 

11 or relevant) an analysis of how the ac12 quisition would likely harm workers 

13 (including significant layoffs or harms 

14 to existing collective bargaining agree15 ments, retirees, worker benefits and 

16 compensation, or labor conditions), 

17 consumers (including patients, rent18 ers, and students), customer choice, 

19 sellers, small or minority-owned busi20 nesses (including farms and ranches), 

21 local, rural, or low-income commu22 nities, communities of color, privacy, 

23 quality (including health and safety), 

24 entrepreneurship, or innovation; 


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1 ‘‘(bb) an explanation of why, in 

2 light of the factors described in item 

3 (aa), the acquisition was rejected; and 

4 ‘‘(cc) a response to public com5 ments that addresses major counter6 arguments to the justification for the 

7 decision to reject; 

8 ‘‘(III) a statement explaining which 

9 party is a dominant firm and identifying 2 

10 or more consummated acquisitions by the 

11 party in a relevant market during the pre12 ceding 5-year period; 

13 ‘‘(IV) the substantive justification re14 ceived from an objecting relevant agency in 

15 accordance with subsection (l); 

16 ‘‘(V) a statement identifying any dis17 qualifying behavior of a party during the 

18 waiting period or during the 10-year period 

19 ending on the date on which notification is 

20 filed under subsection (a); or 

21 ‘‘(VI) an explanation of how the infor22 mation and documentary materials sub23 mitted by the parties were not adequately 

24 responsive; and 


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1 ‘‘(iii) have no precedential value for any 

2 future decisions regarding whether to reject an 

3 acquisition by the same or different persons. 

4 ‘‘(10)(A) Any party to an acquisition rejected 

5 by the Federal Trade Commission or the Assistant 

6 Attorney General under this section may bring an 

7 action under this paragraph in the appropriate dis8 trict court of the United States to challenge the de9 cision of the Federal Trade Commission or the As10 sistant Attorney General to reject the acquisition, 

11 and no other person or entity shall have a cause of 

12 action under this paragraph. 

13 ‘‘(B) A decision of the Federal Trade Commis14 sion or the Assistant Attorney General to reject an 

15 acquisition under this section shall be considered a 

16 matter of discretion, and the reviewing court shall 

17 hold unlawful and set aside the decision only if the 

18 decision’s findings and conclusions are found to be 

19 arbitrary, capricious, an abuse of discretion, or oth20 erwise not in accordance with this section. 

21 ‘‘(C) The parties to a rejected acquisition may 

22 not file suit to challenge the decision more than 60 

23 days after the decision is made public. 

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1 erence to any definition of a relevant market or mar2 ket share alleged by the Federal Trade Commission 

3 or the Assistant Attorney General and may not off4 set any anticompetitive harms alleged by the Federal 

5 Trade Commission or the Assistant Attorney Gen6 eral with any procompetitive benefits. 

7 ‘‘(11) Nothing in this subsection may be con8 strued to preclude the Federal Trade Commission or 

9 the Assistant Attorney General from reviewing or in10 vestigating a nonreportable acquisition before or 

11 after its consummation.’’; and 

12 (C) by striking subsection (f). 

13 (3) ENHANCED HSR FILING REQUIREMENTS.— 

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

15 is amended— 

16 (A) in paragraph (1), by striking ‘‘and’’ at 

17 the end; 

18 (B) by redesignating paragraph (2) as 

19 paragraph (5); and 

20 (C) by inserting after paragraph (1) the 

21 following: 

22 ‘‘(2) shall require that the notification required 

23 under subsection (a) include, in addition to the in24 formation described in paragraph (1)— 


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1 ‘‘(A) basic information on the acquiring 

2 person and the person whose voting securities 

3 or assets are being acquired, including— 

4 ‘‘(i) the names of each executive offi5 cer and board member of each person; 

6 ‘‘(ii) the annual revenues of each per7 son for each year of the 5-year period end8 ing on the date on which the notification 

9 will be filed; 

10 ‘‘(iii) all lines of business, assets, and 

11 investments of each person; 

12 ‘‘(iv) all data assets of each person; 

13 ‘‘(v) all intellectual-property assets of 

14 each person, including patents, copyrights, 

15 and trademarks; 

16 ‘‘(vi) all trade secrets, as defined in 

17 section 1839 of title 18, United States 

18 Code, of each person; 

19 ‘‘(vii) contact information for the 10 

20 largest customers of each person (as appli21 cable); and 

22 ‘‘(viii) contact information for the 10 

23 largest suppliers of each person (as appli24 cable); 


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1 ‘‘(B) the stated justification for the acqui2 sition, including— 

3 ‘‘(i) what, if any, nonpublic informa4 tion was used to inform a decision to enter 

5 the acquisition; 

6 ‘‘(ii) what, if any, publicly available 

7 information was processed using artificial 

8 intelligence, algorithms, or other auto9 mated data processing systems to inform a 

10 decision to enter the acquisition; and 

11 ‘‘(iii) if relevant, how the failing-firm 

12 defense applies, including a list of good13 faith efforts to elicit reasonable alternative 

14 offers and reasons the offers were unsuc15 cessful; 

16 ‘‘(C) any proposed plans to benefit work17 ers, consumers, customer choice, sellers, small 

18 or minority-owned businesses (including farms 

19 and ranches), local, rural, or low-income com20 munities, communities of color, privacy, quality, 

21 entrepreneurship, and innovation, including 

22 plans to— 

23 ‘‘(i) use new expertise, resources, and 

24 additional revenues to reduce prices; 

25 ‘‘(ii) increase quality; 


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1 ‘‘(iii) increase privacy; 

2 ‘‘(iv) increase worker pay, benefits, 

3 and conditions; 

4 ‘‘(v) invest in local, rural, or low-in5 come communities or communities of color; 

6 and 

7 ‘‘(vi) invest in research and develop8 ment; 

9 ‘‘(D) the projected impact of the acquisi10 tion on the competitive process, workers (in11 cluding significant layoffs or harms to existing 

12 collective bargaining agreements, retirees, work13 er benefits and compensation, or labor condi14 tions), consumers (including patients, renters, 

15 and students), customer choice, sellers, small 

16 and minority-owned businesses (including farms 

17 and ranches), local, rural, and low-income com18 munities, communities of color, privacy, quality 

19 (including health and safety), entrepreneurship, 

20 and innovation; 

21 ‘‘(E) a list of all other significant competi22 tors (including entrants or potential entrants) 

23 and competing products; 

24 ‘‘(F) estimated market shares in the rel25 evant markets of the acquisition for each person 


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1 and any significant competitors identified in 

2 subparagraph (E) for the current year and each 

3 of the previous 2 years; 

4 ‘‘(G) a list of every merger, acquisition, 

5 sale of assets, or divestiture consummated by 

6 each party during the preceding 10-year period, 

7 whether or not the party was required to file a 

8 notification under subsection (a); 

9 ‘‘(H) a list of each person or financial in10 stitution that provided or will provide financing 

11 for the acquisition (including debt, equity, and 

12 all other sources) and the amount provided; 

13 ‘‘(I) an affirmation from each party that it 

14 has not engaged in any disqualifying behavior 

15 during the 10-year period ending on the date on 

16 which the notification will be filed; 

17 ‘‘(J) a list of States that would be im18 pacted by the acquisition; 

19 ‘‘(K) a list of Federal agencies with sub20 stantial regulatory authority over each party (or 

21 the persons or financial institutions involved 

22 with financing the acquisition); and 

23 ‘‘(L) whether any party (or its ultimate 

24 parent entity) is a dominant firm; 


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1 ‘‘(3) shall evaluate the stated justification for 

2 the acquisition to determine if the justification com3 ports with the information provided under paragraph 

4 (2); 

5 ‘‘(4) shall determine if the acquisition or com6 bination of data assets described in paragraph (2) 

7 would violate the antitrust laws, including if the ac8 quisition or combination of data assets is likely to 

9 harm the competitive process or create or help main10 tain a monopoly, a monopsony, market power, or un11 fair methods of competition; and’’. 

12 (4) INCREASED WAITING PERIOD.—Section 

13 7A(e) of the Clayton Act (15 U.S.C. 18a(e)) is 

14 amended— 

15 (A) by striking ‘‘30’’ each place the term 

16 appears and inserting ‘‘120’’; and 

17 (B) by striking ‘‘15’’ each place the term 

18 appears and inserting ‘‘60’’. 

19 (5) HSR SHARING.—Section 7A of the Clayton 

20 Act (15 U.S.C. 18a) is amended by adding at the 

21 end the following: 

22 ‘‘(l) HSR SHARING.— 

23 ‘‘(1) SUBMISSION TO STATES.—Not later than 

24 7 days after the date on which information or docu25 mentary material relevant to a proposed acquisition 


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1 is filed with the Federal Trade Commission and As2 sistant Attorney General under this section, the Fed3 eral Trade Commission and the Assistant Attorney 

4 General shall submit to each State attorney general 

5 of any State identified by the parties under sub6 section (d), and to any State attorney general of a 

7 State that the Federal Trade Commission or the As8 sistant Attorney General determines would be im9 pacted by the acquisition— 

10 ‘‘(A) notification of the proposed acquisi11 tion; and 

12 ‘‘(B) a copy of all documents submitted in 

13 relation to the acquisition. 

14 ‘‘(2) SHARING WITH AGENCIES.—For each ac15 quisition filed under subsection (a), the Federal 

16 Trade Commission or the Assistant Attorney Gen17 eral shall— 

18 ‘‘(A) send notice of the proposed acquisi19 tion to any Federal agency— 

20 ‘‘(i) required to review the acquisition 

21 under Federal law; 

22 ‘‘(ii) determined to have substantial 

23 regulatory authority over a party involved 

24 in the acquisition; or 


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1 ‘‘(iii) identified by the parties under 

2 subsection (d); 

3 ‘‘(B) provide to each Federal agency noti4 fied under subparagraph (A) a copy of all docu5 ments submitted in relation to the acquisition 

6 not later than 30 days after the date on which 

7 the waiting period described in subsection 

8 (b)(1) begins; and 

9 ‘‘(C) reject the acquisition if— 

10 ‘‘(i) any Federal agency with substan11 tial regulatory authority objects to the ac12 quisition on the basis that the acquisition 

13 would harm the competitive process or ma14 terially harm the interests of the United 

15 States as a customer, trading partner, or 

16 stakeholder; 

17 ‘‘(ii) the Office of Advocacy of the 

18 Small Business Administration objects to 

19 the acquisition on the basis that the acqui20 sition would materially harm small busi21 nesses (including farms and ranches); 

22 ‘‘(iii) the Minority Business Develop23 ment Agency of the Department of Com24 merce objects to the acquisition on the 

25 basis that the acquisition would materially 


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1 harm minority-owned businesses (including 

2 farms and ranches); or 

3 ‘‘(iv) the National Labor Relations 

4 Board objects to the acquisition on the 

5 basis that— 

6 ‘‘(I) the acquisition would help 

7 create or maintain a monopsony or 

8 unfair labor practice (including the re9 fusal of the parties to preserve, ex10 pand, or effectuate collective bar11 gaining agreements covering workers 

12 impacted by the acquisition, as appli13 cable); or 

14 ‘‘(II) the acquisition would mate15 rially harm workers (including signifi16 cant layoffs or harms to existing col17 lective bargaining agreements, retir18 ees, worker benefits and compensa19 tion, or labor conditions). 

20 ‘‘(3) SUBSTANTIVE JUSTIFICATIONS FOR OB21 JECTIONS.—If a relevant agency objects to an acqui22 sition under paragraph (3), the relevant agency shall 

23 submit to the Federal Trade Commission or the As24 sistant Attorney General, as applicable, a sub25 stantive justification for the objection before the 


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1 date on which the waiting period expires or is termi2 nated. 

3 ‘‘(m) CERTIFICATION.— 

4 ‘‘(1) INDIVIDUALS.— 

5 ‘‘(A) PROHIBITION.—No individual who 

6 certifies a notification filed under subsection (a) 

7 on behalf of an entity may, within the notifica8 tion or during the waiting period, knowingly— 

9 ‘‘(i) falsify, conceal, or cover up by 

10 any trick, scheme, or device a material 

11 fact; 

12 ‘‘(ii) make any materially false, ficti13 tious, or fraudulent statement or represen14 tation; or 

15 ‘‘(iii) make or use any false writing or 

16 document knowing the same to contain any 

17 materially false, fictitious, or fraudulent 

18 statement or entry. 

19 ‘‘(B) PENALTY.—Any individual who vio20 lates subparagraph (A) shall be fined not more 

21 than $10,000,000, imprisoned for not more 

22 than 5 years, or both. 

23 ‘‘(2) CEO LIABILITY.—A chief executive officer 

24 of an entity shall be deemed liable for any violation 

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1 ployee of the entity if the chief executive officer 

2 knew or should have known of the violation. 

3 ‘‘(3) ENTITY.—An entity described in para4 graph (1) shall be fined, for each violation, not more 

5 than 5 percent of the revenues that the ultimate 

6 parent entity of the entity earned during the 1-year 

7 period ending on the date on which the notification 

8 is filed.’’. 

9 (6) ADDITIONAL FTC ENFORCEMENT.—Section 

10 5(a)(2) of the Federal Trade Commission Act (15 

11 U.S.C. 45(a)(2)) is amended by striking ‘‘, except 

12 banks’’ and all that follows through ‘‘said Act,’’. 

13 (c) RULEMAKING.—Not later than 1 year after the 

14 date of enactment of this Act, the Federal Trade Commis15 sion and the Department of Justice shall promulgate regu16 lations to further define harms to the competitive process, 

17 including harms to workers, consumers, customer choice, 

18 sellers, small and minority-owned businesses, local, rural, 

19 and low-income communities, communities of color, pri20 vacy, quality, entrepreneurship, and innovation. 

21 SEC. 5. ADDITIONAL ENFORCEMENT BY STATE ATTORNEYS 

22 GENERAL. 

23 (a) IN GENERAL.— 

24 (1) CIVIL ACTION.—No later than 60 days after 

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1 eral of a State that would be impacted by an acqui2 sition filed under section 7A of the Clayton Act (15 

3 U.S.C. 18a) may bring an action under this para4 graph in the appropriate district court of the United 

5 States to obtain an injunction enjoining the con6 summation of the acquisition. 

7 (2) INJUNCTION.—The court shall grant the in8 junction described in paragraph (1) if the State at9 torney general demonstrates by a preponderance of 

10 the evidence that under section 7A of the Clayton 

11 Act (15 U.S.C. 18a)— 

12 (A) the acquisition is a prohibited merger; 

13 (B) the acquisition is likely to harm the 

14 competitive process or create or help maintain 

15 a monopoly, a monopsony, market power, or 

16 unfair methods of competition; or 

17 (C) during the waiting period or during 

18 the 10-year period ending on the date on which 

19 notification under subsection (a) is filed, a 

20 party to the acquisition engaged in any dis21 qualifying behavior. 

22 (3) HARMS TO THE COMPETITIVE PROCESS.— 

23 The State attorney general may use any direct or in24 direct evidence to demonstrate that an acquisition is 

25 likely to harm the competitive process, including, but 


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1 not limited to, the harms described in section 7A of 

2 the Clayton Act (15 U.S.C. 18a). 

3 (4) BALANCING PROHIBITED.—The court may 

4 not offset any anticompetitive harms demonstrated 

5 under paragraph (2) or (3) with any procompetitive 

6 benefits. 

7 (5) DEFERENCE.—The court shall give def8 erence to any definition of a relevant market or mar9 ket share alleged by the State attorney general. 

10 (6) STAY OF PROCEEDINGS.—The court shall 

11 stay all judicial proceedings under this section re12 garding an acquisition filed under section 7A of the 

13 Clayton Act (15 U.S.C. 18a) until the end of the 

14 waiting period. The stay shall be lifted at the end of 

15 the waiting period if the Federal Trade Commission 

16 or the Assistant Attorney General declines to reject 

17 the acquisition. 

18 (7) DISMISSAL.—The court shall dismiss with 

19 prejudice any claims filed under paragraph (1) if the 

20 Federal Trade Commission or the Assistant Attor21 ney General rejects the acquisition. 

22 (8) TEMPORARY INJUNCTION.—The court shall 

23 issue an injunction temporarily enjoining the con24 summation of the acquisition during the judicial pro25 ceedings under this section. 


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1 (b) NONREPORTABLE ACQUISITIONS.—A State attor2 ney general of a State that would be impacted by a pro3 spective nonreportable acquisition may bring an action 

4 (which shall be subject to the procedures described in 

5 paragraph (a)) under this paragraph in the appropriate 

6 district court of the United States to obtain an injunction 

7 enjoining the consummation of the acquisition. 

8 SEC. 6. BREAKING UP PROHIBITED MERGERS; PROCESS 

9 FOR RETROSPECTIVE REVIEWS. 

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

11 amended by adding at the end the following: 

12 ‘‘(n) RETROSPECTIVE REVIEW.— 

13 ‘‘(1) RETROSPECTIVE REVIEW OF CON14 SUMMATED ACQUISITIONS.— 

15 ‘‘(A) REVIEW.— 

16 ‘‘(i) IN GENERAL.—The Federal 

17 Trade Commission and the Assistant At18 torney General may retrospectively review 

19 any consummated acquisition, including 

20 nonreportable acquisitions. 

21 ‘‘(ii) COORDINATION.— 

22 ‘‘(I) IN GENERAL.—The Federal 

23 Trade Commission and the Assistant 

24 Attorney General may coordinate the 

25 review of a consummated acquisition 


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1 with any State attorney general if the 

2 State was impacted by the acquisition 

3 or any Federal agency deemed to have 

4 substantial regulatory authority over 

5 the parties to the acquisition (includ6 ing persons or financial institutions 

7 involved with financing the acquisi8 tion). 

9 ‘‘(II) COMPULSORY PROCESS.— 

10 The Federal Trade Commission, the 

11 Assistant Attorney General, and any 

12 coordinating State attorney general or 

13 Federal agency may use their respec14 tive compulsory processes to conduct 

15 the reviews. 

16 ‘‘(B) REMEDY.—Upon reviewing an acqui17 sition described in subparagraph (A), the Fed18 eral Trade Commission or the Assistant Attor19 ney General shall order a remedy to restore 

20 competition or otherwise address the anti21 competitive impacts of the acquisition (which 

22 shall include unwinding the acquisition or re23 quiring that the acquiring person make 

24 divestitures, which, to the extent practicable, 

25 shall be specified, standalone business units or 


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1 lines), if the Federal Trade Commission or the 

2 Assistant Attorney General, respectively, acting 

3 in coordination with any State attorney general 

4 or Federal agency (as applicable), determines 

5 that— 

6 ‘‘(i) the acquisition resulted in a post7 acquisition market share of greater than 

8 50 percent of any relevant market (includ9 ing labor markets); 

10 ‘‘(ii) the acquisition resulted in a 

11 Herfindahl-Hirschman Index greater than 

12 2,500 in any relevant market and in13 creased the Herfindahl-Hirschman Index 

14 by more than 200 in such relevant market; 

15 ‘‘(iii) the acquisition has brought ma16 terial harm to the competitive process; 

17 ‘‘(iv) if applicable, the acquiring per18 son has failed to satisfy the stated jus19 tification of the acquisition or the acquisi20 tion did not result in the benefits described 

21 in the stated justification submitted under 

22 subsection (d)(2); or 

23 ‘‘(v)(I) the acquisition is a con24 summated nonreportable acquisition; and 


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1 ‘‘(II)(aa) the acquisition is a prohib2 ited merger; or 

3 ‘‘(bb) after the date of enactment of 

4 this subparagraph, the acquiring person or 

5 the acquired person engaged in disquali6 fying behavior during the 10-year period 

7 ending on the date on which the nonreport8 able acquisition was consummated. 

9 ‘‘(2) IMMEDIATE RETROSPECTIVE REVIEW OF

10 PROHIBITED MERGERS.— 

11 ‘‘(A) REVIEW.— 

12 ‘‘(i) IN GENERAL.—Except as pro13 vided in clause (ii), the Federal Trade 

14 Commission and the Assistant Attorney 

15 General shall immediately review every 

16 prohibited merger consummated on or 

17 after January 1, 2000, for which the par18 ties were required to file a notification 

19 under this section. 

20 ‘‘(ii) APPLICABILITY.—For the pur21 poses of this subparagraph, prohibited 

22 mergers shall be defined without adjust23 ment to any dollar amounts. 

24 ‘‘(iii) COORDINATION.— 


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1 ‘‘(I) IN GENERAL.—The Federal 

2 Trade Commission and the Assistant 

3 Attorney General may coordinate the 

4 review of a prohibited merger with 

5 any State attorney general if the 

6 State was impacted by the prohibited 

7 merger or any Federal agency deemed 

8 to have substantial regulatory author9 ity over the parties to the prohibited 

10 merger (including persons or financial 

11 institutions involved with financing 

12 the prohibited merger). 

13 ‘‘(II) COMPULSORY PROCESS.— 

14 The Federal Trade Commission, the 

15 Assistant Attorney General, and any 

16 coordinating State attorney general or 

17 Federal agency may use their respec18 tive compulsory processes to conduct 

19 the reviews. 

20 ‘‘(B) REMEDY.—Upon reviewing a prohib21 ited merger described in subparagraph (A), the 

22 Federal Trade Commission or the Assistant At23 torney General shall order a remedy to restore 

24 competition or otherwise address the anti25 competitive impacts of the acquisition (which 


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•S 3847 IS

1 shall include unwinding the acquisition or re2 quiring that the acquiring person make 

3 divestitures, which, to the extent practicable, 

4 shall be specified, standalone business units or 

5 lines), if the Federal Trade Commission or the 

6 Assistant Attorney General, respectively, acting 

7 in coordination with any State attorney general 

8 or Federal agency (as applicable), determines 

9 that the prohibited merger— 

10 ‘‘(i) resulted in a post-acquisition 

11 market share of greater than 50 percent of 

12 any relevant market (including labor mar13 kets); 

14 ‘‘(ii) resulted in a Herfindahl15 Hirschman Index greater than 2,500 in 

16 any relevant market and increased the 

17 Herfindahl-Hirschman Index by more than 

18 200 in such relevant market; or 

19 ‘‘(iii) brought material harm to the 

20 competitive process. 

21 ‘‘(C) DEADLINES.—The Federal Trade 

22 Commission and the Assistant Attorney General 

23 shall— 

24 ‘‘(i) not later than 180 days after the 

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1 lish and implement a process to carry out 

2 the review required under subparagraph 

3 (A); and 

4 ‘‘(ii) not later than 4 years after the 

5 date of enactment of this subsection— 

6 ‘‘(I) complete the review required 

7 under subparagraph (A); and 

8 ‘‘(II) implement the remedies re9 quired under subparagraph (B). 

10 ‘‘(3) STATE ATTORNEYS GENERAL.— 

11 ‘‘(A) CONSUMMATED ACQUISITIONS.— 

12 ‘‘(i) REVIEW.—A State attorney gen13 eral of a State impacted by a con14 summated acquisition may review the ac15 quisition in accordance with paragraph (1), 

16 including by using compulsory process. 

17 ‘‘(ii) CIVIL ACTION.— 

18 ‘‘(I) IN GENERAL.—Upon review19 ing an acquisition described in clause 

20 (i), the State attorney general may 

21 bring an action under this clause in 

22 the appropriate district court of the 

23 United States seeking a remedy to re24 store competition or otherwise address 

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1 quisition (which shall include 

2 unwinding the acquisition or requiring 

3 that the acquiring person make 

4 divestitures, which, to the greatest ex5 tent practicable, shall be specified, 

6 standalone business units or lines). 

7 ‘‘(II) COURT REMEDY.—The 

8 court shall grant the remedy described 

9 in subclause (I) if the State attorney 

10 general demonstrates by a preponder11 ance of the evidence that the remedy 

12 would have been proper under para13 graph (1)(B), unless the parties to the 

14 acquisition demonstrate by clear and 

15 convincing evidence that unwinding 

16 would not have been proper under 

17 paragraph (1)(B). 

18 ‘‘(III) BALANCING LIMITED.— 

19 The court may not offset a dem20 onstrated anticompetitive harm with a 

21 procompetitive benefit unless the ben22 efit applies to the same population im23 pacted by the harm. 

24 ‘‘(IV) DEFERENCE.—The court 

25 shall give deference to any definition 


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•S 3847 IS

1 of a relevant market or market share 

2 alleged by the State attorney general. 

3 ‘‘(B) PROHIBITED MERGERS.— 

4 ‘‘(i) REVIEW.—A State attorney gen5 eral of a State impacted by a prohibited 

6 merger may review the prohibited merger 

7 in accordance with paragraph (2), includ8 ing by using compulsory process. 

9 ‘‘(ii) CIVIL ACTION.— 

10 ‘‘(I) IN GENERAL.—Upon review11 ing a prohibited merger described in 

12 clause (i), the State attorney general 

13 may bring an action under this clause 

14 in the appropriate district court of the 

15 United States seeking a remedy to re16 store competition or otherwise address 

17 the anticompetitive impacts of the 

18 prohibited merger (which shall include 

19 unwinding the prohibited merger or 

20 requiring that the acquiring person 

21 make divestitures, which, to the great22 est extent practicable, shall be speci23 fied, standalone business units or 

24 lines). 


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1 ‘‘(II) COURT REMEDY.—The 

2 court shall grant the remedy described 

3 in subclause (I) if the State attorney 

4 general demonstrates by a preponder5 ance of the evidence that imposing the 

6 remedy would have been proper under 

7 paragraph (2)(B), unless the parties 

8 to the prohibited merger demonstrate 

9 by clear and convincing evidence that 

10 imposing the remedy would not have 

11 been proper under paragraph (2)(B). 

12 ‘‘(III) BALANCING LIMITED.— 

13 The court may not offset a dem14 onstrated anticompetitive harm with a 

15 procompetitive benefit unless the ben16 efit applies to the same population im17 pacted by the harm. 

18 ‘‘(IV) DEFERENCE.—The court 

19 shall give deference to any definition 

20 of a relevant market or market share 

21 alleged by the State attorney general. 

22 ‘‘(4) DOMINANT FIRMS.—In addition to any 

23 other harms to the competitive process that may be 

24 determined or established, the Federal Trade Com25 mission, the Assistant Attorney General, or a State 


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1 attorney general may also determine or establish 

2 that a prohibited merger has brought material harm 

3 to the competitive process if— 

4 ‘‘(A) any party (or its ultimate parent enti5 ty) was a dominant firm; and 

6 ‘‘(B)(i) another party was a nascent com7 petitor or maverick; 

8 ‘‘(ii) another party was a critical trading 

9 partner in the supply chains or business eco10 systems of the parties; or 

11 ‘‘(iii) the acquisition created a platform 

12 conflict of interest. 

13 ‘‘(5) JUDICIAL REVIEW.— 

14 ‘‘(A) IN GENERAL.—Any party to an ac15 quisition reviewed by the Federal Trade Com16 mission or the Assistant Attorney General 

17 under paragraph (1) or (2) may bring an action 

18 under this paragraph in the appropriate district 

19 court of the United States to challenge a deci20 sion of the Federal Trade Commission or the 

21 Assistant Attorney General made under this 

22 subsection to order a remedy, and no other per23 son or entity shall have a cause of action under 

24 this paragraph. 


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1 ‘‘(B) STANDARDS OF REVIEW.—A decision 

2 by the Federal Trade Commission or the Assist3 ant Attorney General to order a remedy under 

4 this section shall be considered a matter of dis5 cretion, and the reviewing court shall hold un6 lawful and set aside the decision only if the de7 cision’s findings and conclusions are found to 

8 be arbitrary, capricious, an abuse of discretion, 

9 or otherwise not in accordance with this section. 

10 ‘‘(C) BALANCING LIMITED.—The court 

11 may not offset an anticompetitive harm alleged 

12 by the Federal Trade Commission or the Assist13 ant Attorney General with a procompetitive 

14 benefit unless the benefit applies to the same 

15 population impacted by the harm. 

16 ‘‘(D) DEFERENCE.—The court shall give 

17 deference to any definition of a relevant market 

18 or market share alleged by the Federal Trade 

19 Commission or the Assistant Attorney General. 

20 ‘‘(6) PUBLIC FINDINGS AND DECISIONS.—All 

21 findings and decisions (including decisions to initiate 

22 a retrospective review and decisions whether or not 

23 to order a remedy) described in this subsection shall 

24 be made publicly available. Any decision to order a 

25 remedy shall include a substantive justification. 


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1 ‘‘(7) ADDITIONAL PROCESSES.—Not later than 

2 180 days after the date of enactment of this sub3 section, the Federal Trade Commission and the As4 sistant Attorney General shall— 

5 ‘‘(A) establish procedures for the stake6 holders of a consummated acquisition to submit 

7 complaints regarding any adverse impacts of 

8 the acquisition to the Federal Trade Commis9 sion, the Assistant Attorney General, and their 

10 respective State attorneys general; and 

11 ‘‘(B) establish guidelines for when com12 plaints received under subparagraph (i) will 

13 trigger a mandatory retrospective review under 

14 paragraph (1).’’. 

15 SEC. 7. EXCLUSIVE JURISDICTION. 

16 (a) DISTRICT COURTS.— 

17 (1) IN GENERAL.—The United States District 

18 Court for the District of Columbia shall have exclu19 sive jurisdiction to determine the validity of any de20 cision made by the Federal Trade Commission or 

21 the Assistant Attorney General under the amend22 ments made by sections 4 and 6 of this Act. 

23 (2) ACTIONS BROUGHT BY STATE ATTORNEYS

24 GENERAL.— 


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1 (A) Except as provided in subparagraph 

2 (B), if a State attorney general brings an action 

3 under section 5 or subsection (n) of section 7A 

4 of the Clayton Act, as added by section 6 of 

5 this Act, the district court of the United States 

6 for the judicial district in which the capital of 

7 the State is located shall have exclusive jurisdic8 tion. 

9 (B) In the event that multiple State attor10 neys general bring actions regarding the same 

11 acquisition, those actions shall be consolidated 

12 in the United States District Court for the Dis13 trict of Columbia or a district court with juris14 diction under this section. 

15 (b) COURT OF APPEALS.—The United States Court 

16 of Appeals for the District of Columbia Circuit shall have 

17 exclusive jurisdiction of appeals from all decisions under 

18 subsection (a). 

19 (c) SUPREME COURT.—The Supreme Court of the 

20 United States shall not have appellate jurisdiction of any 

21 appeal from a decision under subsection (a) or (b). 

22 (d) EXCLUSIVE REMEDIES.—The causes of action 

23 authorized by this Act and amendments made by this Act 

24 shall be the exclusive remedies available to any person in25 jured or adversely affected by a decision of the Federal 


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1 Trade Commission or the Assistant Attorney General of 

2 the Antitrust Division of the Department of Justice made 

3 under this Act or under the amendments made by this 

4 Act. 

5 SEC. 8. FUNDING. 

6 (a) AUTHORIZATIONS OF APPROPRIATIONS.—There 

7 is authorized to be appropriated for fiscal year 2023 and 

8 each fiscal year thereafter— 

9 (1) $1,000,000,000 for the Federal Trade Com10 mission; and 

11 (2) $1,000,000,000 for the Antitrust Division 

12 of the Department of Justice. 

13 (b) FINES AND PENALTIES.—The Federal Trade 

14 Commission and the Antitrust Division of the Department 

15 of Justice may use any funds from fines, penalties, and 

16 settlements not returned to consumers for their respective 

17 future operations. 

18 (c) ADDITIONAL APPROPRIATIONS.—To the extent 

19 there are insufficient funds from fines, penalties, settle20 ments, and fees received by the Federal Trade Commis21 sion and the Antitrust Division of the Department of Jus22 tice for the costs of their respective programs, projects, 

23 and activities, there are appropriated, out of monies in the 

24 Treasury not otherwise appropriated, for fiscal year 2023 


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1 and each fiscal year thereafter such sums as are necessary 

2 for the costs of such programs, projects, and activities. 

3 SEC. 9. RULES OF CONSTRUCTION. 

4 Nothing in this Act, or an amendment made by this 

5 Act, may be construed to limit— 

6 (1) any authority of the Federal Trade Com7 mission, the Assistant Attorney General, any State 

8 attorney general, or any Federal agency under the 

9 antitrust laws or any other provision of law; or 

10 (2) the application of any law. 

11 SEC. 10. SEVERABILITY. 

12 (a) IN GENERAL.—If any provision of this Act, an 

13 amendment made by this Act, or the application of such 

14 provision or amendment to any person or circumstance is 

15 held to be unconstitutional, the remainder of this Act and 

16 of the amendments made by this Act, and the application 

17 of the remaining provisions of this Act and amendments 

18 to any person or circumstance shall not be affected. 

19 (b) EXCLUSIVE JURISDICTION.— 

20 (1) DISTRICT COURT.—The United States Dis21 trict Court for the District of Columbia shall have 

22 exclusive jurisdiction over any action challenging the 

23 constitutionality or lawfulness of any provision of 

24 this Act, any amendment made by this Act, or any 


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1 regulation promulgated under this Act or an amend2 ment made by this Act. 

3 (2) COURT OF APPEALS.—The United States 

4 Court of Appeals for the District of Columbia Cir5 cuit shall have exclusive jurisdiction of appeals from 

6 all decisions under paragraph (1). 

7 (3) SUPREME COURT.—The Supreme Court of 

8 the United States shall not have appellate jurisdic9 tion of any appeal from a decision under paragraph 

10 (1) or (2). 

11 (c) DECISIONS BY ANTITRUST AGENCIES.—Except 

12 as provided in this Act, no Federal, State, or Territorial 

13 court shall have jurisdiction or power to consider the valid14 ity of decisions made by the Federal Trade Commission 

15 or the Assistant Attorney General under this Act, or under 

16 the amendments made by this Act, or to stay, restrain, 

17 enjoin, or set aside, in whole or in part, any provision of 

18 this Act authorizing such decisions made by the Federal 

19 Trade Commission or the Assistant Attorney General or 

20 making effective any such decisions made by the Federal 

21 Trade Commission or the Assistant Attorney General, or 

22 any provision of any such decisions made by the Federal 

23 Trade Commission or the Assistant Attorney General, or 

24 to restrain or enjoin the enforcement of any such decisions 


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1 made by the Federal Trade Commission or the Assistant 

2 Attorney General. 

3 (d) ACTIONS BY STATE ATTORNEY GENERALS.—Ex4 cept as provided in this Act, no Federal, State, or Terri5 torial court shall have jurisdiction or power to review ac6 tions brought by a State attorney general under this Act, 

7 or under an amendment made by this Act, or to stay, re8 strain, enjoin, or set aside, in whole or in part, any provi9 sion of this Act authorizing such actions brought by a 

10 State attorney general under this Act, or to restrain or 

11 enjoin the enforcement of any related judicial decisions. 

Æ 


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