President-elect Trump is tasked with appointing two top antitrust enforcers: a new FTC Chair and a new AAG to lead the Antitrust Division. Who President-elect Trump will nominate to replace the agency heads is being hotly debated, with rumors already swirling regarding potential nominees. In view of the rapid pace with which President Trump is aiming to put in place top officials in his incoming administration, and given the fact the Republicans have a Senate majority, the new agency heads may be nominated and confirmed by the Senate more quickly this time around than in his first administration. Even so, the confirmation process will take some time. Until then, at the FTC, one of the two Republican Commissioners is expected to be named acting Chair, and, if Chair Khan resigns (as is typically the case with a change in presidential leadership), there may soon be two Republican Commissioners and two Democratic Commissioners until a replacement is confirmed, creating an impasse for any decisions for which there is not bipartisan agreement among the Commissioners. But, between now and the inauguration, Chair Khan may accelerate plans to move ahead with new enforcement cases that are close to or ready to be put to a Commission vote while she retains a 3-2 Democratic majority.

With respect to the top job at DOJ, following reports that President-elect Trump’s nomination of Rep. Matt Gaetz (R-FL) for Attorney General (AG) was facing significant headwinds in the Senate,⁶ Gaetz announced on November 21, 2024 that he is withdrawing his nomination.  Gaetz has praised FTC Chair Khan’s pursuit of an aggressive antitrust enforcement agenda, as has Vice President-elect JD Vance.⁷  Whether President-elect Trump’s next nominee for AG share Gaetz’s support for Chair Khan’s enforcement efforts in the tech sector remains to be seen. ⁸  Until a new Antitrust Division head is named and confirmed, the interim lead is unlikely to undertake any major changes or initiatives.

The antitrust agencies under the leadership of Chair Khan and AAG Kanter have implemented policies and procedures that have led to more aggressive merger enforcement.  The agencies have challenged more deals in court and expressed an aversion to structural remedies,⁹ or any resolutions of deals with antitrust concerns that “fall short of blocking a transaction.”¹⁰

The agencies in the second Trump administration are likely to be comparatively more "merger-friendly” than in the Biden administration.  However, given the populist sentiments reflected by Vice President-elect JD Vance, we are unlikely to see a wholesale walk-back of merger enforcement during the next four years.  That said, we expect the antitrust agencies to agree to more divestitures in settlement agreements instead of suing to block as many cases in court.      

2023 Merger Guidelines

It has been less than a year since the FTC and DOJ published updated Merger Guidelines in December 2023 (the 2023 Merger Guidelines).¹¹  The 2023 Merger Guidelines reflect a dramatic overhaul of the way the agencies have evaluated mergers for years, and reflect the current agencies’ commitment to enhanced scrutiny of mergers across the board.

If past is prologue, the 2023 Merger Guidelines face an uncertain future in the new administration.  In recent comments, Republican FTC Commissioner Holyoak cited the new guidelines’ downplaying of economic evidence and reliance on “old case law” to support her view that in the new administration, the FTC and DOJ should “strongly consider” rescinding or revising the guidelines.¹²

Importantly, any significant revisions would take time; it took the agencies the better part of two years to finalize the 2023 Merger Guidelines. Whether the agencies will decide to repeal the 2023 Guidelines immediately without having something ready to take their place remains to be seen, though a revival of the 2010 Guidelines could be, at the very least, an interim measure. A withdrawal without replacement, however, would not be unprecedented: under the leadership of Chair Khan, the FTC voted in 2021 to rescind the 2020 Vertical Merger Guidelines (VMG)¹³ without any clear guidance as to what would replace them or when any replacement would be issued.14 Merging parties would face similar uncertainty if the agencies in Trump’s second term rescind the 2023 Merger Guidelines without having new guidance ready for prime time. 

Some of the most boundary-pushing provisions in the 2023 Guidelines will likely face the most critical scrutiny in a Republican-led FTC and Antitrust Division.  These include:

• Lowering of concentration thresholds that trigger a structural presumption of illegality to pre-2010 levels;
• Evaluation of whether a merger may entrench or extend a firm’s dominant position in new markets;
• Examination of a given transaction in the context of industry trends—including trends towards vertical integration—to determine whether a merger presents a threat to competition;
• Evaluation of a firm’s “pattern or strategy of multiple small acquisitions in the same or related business lines;” and
• Assessing a transaction’s impact on labor markets and explicitly rejecting potential efficiency arguments related to labor cost reductions.

In addition, FTC and Antitrust Division leadership in Trump’s second term may reject the deemphasis in the 2023 Merger Guidelines of the distinction between the agencies’ treatment of horizontal and vertical mergers.  This stemmed from the FTC’s decision, under Chair Khan, to rescind the VMG in September 2021 on the basis that the VMG contained “serious deficiencies,” specifically with respect to their “flawed discussion of the purported procompetitive benefits (i.e. efficiencies) of vertical mergers.”¹⁵  Trump antitrust enforcers are likely to re-up separate analysis for vertical transactions that acknowledges that vertical mergers are often procompetitive.  However, it should be noted that the first vertical merger challenge in forty years was brought by DOJ during Trump’s first term,16 though that challenged failed. Nonetheless, the willingness of the prior Trump Administration to bring such an action may indicate that the increased scrutiny of vertical transactions by the agencies’ over the past few years could continue. 

Increased focus on “traditional” theories of harm

The antitrust agencies, with Republicans at the helm, are likely to move away from bringing cases alleging more novel theories of harm that have been a hallmark of Chair Khan and AAG Kanter’s enforcement agenda.  New leadership may take note that the agencies’ most recent wins—such as in Tapestry/Capri, IQVIA/Propel, and the airline mergers—followed more traditional theories of harm.  We should see the agencies in the second Trump administration largely return to merger challenges rooted in more well-established legal theories focused on harm to consumers and rooted in economic analysis that are likely to be received more favorably by the courts.  

Remedies are back on the table

The antitrust agencies in the new administration are likely to be more receptive to consent agreements and merger settlements that include divestiture packages, which were largely disfavored by the agencies under the Biden administration.  In the new Trump administration, the trend towards “litigating the fix” may be stemmed in part, and the agencies will likely be more receptive to merging parties’ remedy proposals.  FTC Commissioner Holyoak recently said that, in her view, merger cases should be looked at “holistically” and remedies should be “kept on the table.”¹⁷  New FTC leadership may also consider rescinding the agency’s Statement on the Use of Prior Approval Provisions in Merger Orders (Prior Approval Statement), which provided that in all divestiture orders merging parties must obtain prior approval from the FTC before closing any future transaction affecting any relevant market for which a violation was alleged.¹⁸

HSR Form revisions

Last month the FTC announced a final rule revising the disclosure requirements for premerger filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act),¹⁹ which are significantly more burdensome for merging parties than the current requirements.  The new rule—which was approved by the FTC in a unanimous 5-0 vote—is scheduled to become effective on February 10, 2025.  The effective date may be postponed by at least 60 days if President-elect Trump decides to issue a freeze on pending federal regulations or otherwise could be delayed if the rule is challenged in court. 

Given the bipartisan support for the final rule at the FTC, it may have staying power in the new administration, at least to start.  In recent remarks at the ABA Antirust Fall Forum, Commissioner Holyoak discussed revisions to the final rule which were made in response to her concerns about the initial draft.²⁰  She said that, once the new rule takes effect, she will “analyze the effects of the rule” with respect to the types of burdens being placed on parties, and will look at whether the information being collected is actually assisting the agencies evaluate the competitive harm of proposed transactions.  She also said that she is committed to working with new leadership at the Antitrust Division to understand their perspective before deciding how to approach any potential changes to the new rule.  The FTC can then address any concerns with the final rule by overturning the rule under the Congressional Review Act, through a new formal rulemaking, or by issuing informal guidance through the FTC’s Premerger Notification Office as it has in the past.

Private equity “roll-ups”

Private equity “roll-ups” have been a stated area of focus for the FTC and DOJ Antitrust Division in the Biden administration.  As noted above, the 2023 Merger Guidelines (which are likely to be repealed or significantly revised in the new Trump administration) state that the agencies’ merger review will include  evaluating a firm’s “pattern or strategy of multiple small acquisitions in the same or related business lines.”  The 2023 Merger Guidelines also note that patterns of acquisitions may also be an unfair method of competition under Section 5 of the FTC Act.²¹ The antitrust agencies in the next administration are likely to take a more permissive view of the private equity model—and serial acquisitions by non-private equity actors—and we should expect the heightened scrutiny of these transactions to abate. 

“Big Tech "

The heightened antitrust scrutiny on tech firms in the United States is unlikely to diminish significantly during Trump’s second term, at least in the near term. It is doubtful that the ongoing DOJ and FTC monopolization cases against major technology companies in the U.S. will be abandoned outright by a Republican-helmed FTC and Antitrust Division. Several of the investigations that are now being litigated in court were launched in the Trump administration. However, Trump has expressed skepticism about breakups as a remedy and the antitrust agencies in Trump’s second term may also argue, as have Congressional Republicans, that dominance among Big Tech firms is a threat to free speech, specifically with respect to suppressing conservative viewpoints, though any such free speech arguments are likely to be long shots and could be in some tension with an enforcement policy more focused on the consumer welfare standard.²²

Both agencies have recently hired data scientists and other tech professionals in a commitment to pursuing antitrust enforcement in the tech industry, an indicator that such enforcement is here to stay.  In 2019, the Republican-led FTC established the Technology Task Force “to enhance the Bureau [of Competition]’s focus on technology-related sectors of the economy, including markets in which online platforms compete.”²³  In 2023, FTC Chair Khan announced a permanent Office of Technology in the agency “to keep pace with technological challenges in the digital marketplace by supporting the agency’s law enforcement and policy work.²⁴  Continuity across administrations on this front is likely to continue.   

Also likely to remain an enforcement focus is the hot topic of algorithmic pricing and collusion, which, along with the competitive impact of artificial intelligence more generally, is likely to be of interest to the agencies regardless of the particular administration. 

Pharmaceutical enforcement

The FTC in the Biden administration has had its sights set on the pharmaceutical industry in a bid to tackle high drug prices. The pharmaceutical industry is likely to remain an area of heightened enforcement focus for the FTC in the Trump administration, with the industry one of the few areas in which there is broad bipartisan support for antitrust enforcement.

However, while the focus on the industry is unlikely to be much lower (if at all) in the new FTC, the types of conduct the FTC has in its crosshairs may change. During the Biden administration, the FTC has been focused on more novel theories of harm—such as allegedly improper Orange Book listings even where there has not been a 30-month stay of generic approval,²⁵ or bundling as a theory of harm in the merger context. In contrast, the FTC in the Trump administration is likely to be focused more on traditional theories of harm.

2022 Section 5 Policy Statement

We expect a Republican-led FTC to prioritize rescission of the FTC’s 2022 Policy Statement Regarding the Scope of Unfair Methods of Competition Under Section 5 of the FTC Act (Section 5 Policy Statement).²⁶  The Section 5 Policy Statement outlines a significant expansion of what the agency views as “unfair methods of competition” under Section 5, and was a tentpole of the FTC’s enforcement philosophy under the leadership of Chair Khan.  The policy statement describes Section 5 as reaching “beyond the Sherman and Clayton Acts [the antitrust laws] to encompass various types of unfair conduct that tend to negatively affect competitive conditions. ” The Policy Statement also outlined how the agency might pursue such “standalone” unfair methods of competition claims under Section 5, and reflected a broad interpretation of the FTC's authority under Section 5.

The FTC’s issuance of the Section 5 Policy Statement followed its July 2021 withdrawal of the 2015 Statement of Enforcement Principles Regarding “Unfair Methods of Competition” under the FTC Act (2015 Statement), which provided a more limited interpretation of the agency’s authority under Section 5.²⁷  Whether the Republican majority FTC will issue a similar statement to the 2015 Statement, or merely withdraw the expansive 2022 iteration, remains an open question.  But what is fairly certain is that the broad authority that Chair Khan’s FTC interpreted Section 5 to encompass will likely be circumscribed significantly, with the FTC’s authority under Section 5 likely to be interpreted much more narrowly in the new administration. 

Non-Compete Rule

The FTC’s 2024 rule banning non-compete agreements (the Non-Compete Rule)²⁸ was grounded in the agency’s view that such agreements constitute an “unfair method of competition” under Section 5 of the FTC Act.  The rule—which was finalized in April 2024 but set aside by a Texas federal court²⁹ in August—will most likely be on the chopping block in a conservative-majority FTC.  Since its publication, the rule has faced significant opposition by House Republicans,³⁰ Republican FTC Commissioners,³¹ and the business community.³²

The fate of the Non-Compete Rule faces one of several possible paths in the Trump administration.  The FTC in the new Trump administration could withdraw the rule, given skepticism that the FTC has authority to issue substantive rules in the first place.³³  The FTC could also abandon the appeal³⁴ of the Texas court’s decision setting aside the new rule.  Or, new leadership could choose to let the appeal run its course with the expectation that the Court of Appeals for the Fifth Circuit—or, potentially, the U.S. Supreme Court—will strike it down permanently and establish precedent limiting FTC competition rulemaking authority under the FTC Act. 

Constitutional challenges to the FTC

On the heels of the Supreme Court’s 2023 opinion allowing parties to bring constitutional challenges to the FTC in federal district court,³⁵ defendants in FTC merger lawsuits have increasingly raised constitutional challenges to the FTC’s authority in an effort to significantly limit the FTC’s enforcement authority.³⁶  Recently, Republican Commissioner Ferguson articulated his view that for-cause removal protections provided to FTC Administrative Law Judges (ALJs) are unconstitutional.  Similarly, Commissioner Holyoak has opined that broadening the agency’s rulemaking authority is unconstitutional, arguing, among other things, that the FTC “should not lose sight” of constitutional proscriptions and should “approach legislative rulemaking with circumspection.”³⁷  It remains to be seen how a Republican-majority FTC could potentially affect the agency’s structure and mandate. 

Robinson-Patman Act enforcement

The FTC in the Biden administration has repeatedly expressed a desire to reinvigorate enforcement of the Robinson-Patman Act. The Act—which prohibits charging different prices to competing sellers—has for several decades been viewed as out of step with modern antitrust principles. The current FTC appears to have multiple Robinson-Patman Act investigations underway—and a case may still be voted out before the end of the Biden administration. However, the FTC under the Trump administration may revert to the decades of nonenforcement of the Robinson-Patman Act.

While the antitrust agencies in Trump’s second term may be shifting their enforcement priorities, this may not result in a net reduction in the number of cases that see the light of day.  Instead, we may begin to see new targets stand in for old ones.  For example, Republican-led agencies will likely shift away from a focus on competition in the labor markets in their merger review analysis, and move towards applying the antitrust laws to other priorities, such as agreements regarding environmental, social and governance (ESG) policies and the alleged suppression of conservative voices on mainstream social media platforms.

With respect to ESG, Republican members of Congress have been actively advocating for antitrust enforcement targeting agreements on ESG practices for the last several years.  In addition to holding numerous hearings, in July 2024 the House Judiciary Committee released an interim staff report³⁸ that purportedly “details new direct evidence of a ‘climate cartel’ consisting of left-wing activists and major financial institutions that collude to impose radical environmental, social, and governance (ESG) goals on American companies.”³⁹  Under the leadership of Chairman Jim Jordan (R-OH), the House Judiciary Committee also announced on July 30, 2024, that it is examining “whether existing civil and criminal penalties and current antitrust law enforcement efforts are sufficient to deter anticompetitive collusion to promote ESG-related goals in the investment industry.”⁴⁰  

In addition, during Trump’s first term the Antitrust Division challenged a number of mergers in the cannabis industry that would have been unlikely targets if subjected to a traditional antitrust analysis.  Whether the agencies in the next Trump administration continue to target transactions in the cannabis (or other politically controversial sectors) remains to be seen. 

All told, it would not be prudent to fully rely on the next administration implementing a purely traditional Republican “back to basics” antitrust philosophy rooted in a strict interpretation of the consumer welfare standard.  Instead, we should expect the antitrust agencies in Trump’s second term to cater—at least to some extent—to the less predictable populist element that was instrumental in delivering President-elect Trump a second term, even if it results in antitrust policy that diverges from a more “traditional” conservative enforcement philosophy. 

Importantly, state enforcers will also continue to play a role in antitrust enforcement during the next administration.  State attorneys generals are co-plaintiffs with DOJ and FTC in a number of current high-profile cases related to Big Tech, information sharing, algorithmic pricing, and e-commerce.  Thus, even if the federal antitrust agencies in the next Trump administration abandon some of the enforcement priorities that were prominent in the Khan/Kanter era, state antitrust enforcers may step in to take up the mantle.   

Since 2020, Congressional Republicans have been pushing for legislation that would eliminate the FTCs competition enforcement mandate and make the U.S. Department of Justice the sole agency charged with enforcing the U.S. antitrust laws. The One Agency Act⁴²which was waved through the House Judiciary Committee in April 2024—would integrate the FTC Bureau of Competition with the DOJ Antirust Division within one year of passage. While the FTC would be able to continue to pursue ongoing cases and consent decrees, the Antitrust Division would have the authority to terminate them, and the FTC would be barred from opening new investigations or bringing cases relating to the antitrust laws or unfair methods of competition under Section 5 of the FTC Act. This would be a significant overhaul of the U.S. antitrust enforcement landscape, and make President-elect Trump pick to lead the DOJ Antitrust Division even more significant. While chances of the bill passing are far from certain, Adam Cella, chief counsel for the House antitrust subcommittee, recently opined that there is a strong possibility that the One Agency Act will be passed when Republicans take a majority in both the House and the Senate next term. ⁴³