Transitions Between Incoming and Outgoing Administrations
The panelists began by discussing the transition between incoming and outgoing administrations, including how a new administration determines how to handle ongoing litigation inherited from the prior administration. Ms. Ohlhausen explained that typically, because of a historically bipartisan interest in continuity in antitrust enforcement, new leadership will not simply cease ongoing litigation. Ms. Feinstein stated that general continuity in the Agencies’ work between administrations is expected – the question is in which few areas a new administration may depart from the prior one. Panelists also emphasized that the Agencies’ new leadership will take stock of current cases and make key decisions about the allocation of resources. Antitrust litigation and investigations are expensive, and how the Agencies’ new leadership chooses to allocate their resources will determine their enforcement priorities.
Furthermore, the panelists also discussed the implications of the FTC’s temporary 2-2 split across party lines. Ms. Ohlhausen, who ran the FTC as Acting Chair with a 1-1 split, explained that without a majority, Chair Ferguson cannot undo decisions made during the Biden administration, including ongoing cases. Thus, until Mark Meador is confirmed as the fifth FTC Commissioner, which will give the FTC a Republican majority, cases in progress will move ahead. Even in a split Commission, however, Chair Ferguson can impact the FTC’s allocation of resources and priorities through his direction of the staff and Bureau Director.
Enforcement Priorities for the Second Trump Administration
While much antitrust enforcement remains consistent across administrations, the panelists noted reasons why some departures from this course may be expected. For example, Ms. Collins underscored that, while the first Trump administration used generally pro-business rhetoric, the second Trump administration has displayed a more populist spirit and has indicated more of a focus on protecting small to medium sized businesses. Another difference across administrations pertains to monopolization cases. The DOJ’s Antitrust Division under the Biden administration pursued monopolization cases under Section 2 of the Sherman Act as criminal offenses. Ms. Collins does not expect that the DOJ under the second Trump administration will continue this approach, especially given the greater burden of proof tied to criminal cases. Rather, Ms. Collins predicts a return to antitrust enforcement of Section 2 as civil offenses.
Topics in the Antitrust Spotlight
In terms of industry focus, Ms. Collins highlighted technology and agriculture as industries in the spotlight. A focus on Big Tech, in particular, is a bipartisan issue that presents a line of continuity across the Biden and Trump administrations. Indeed, the Agencies under the Trump administration are inheriting several pending antitrust lawsuits against Big Tech companies, including Apple, Amazon, Google, and Meta. One Google case is entering its remedies phase, following Judge Amit Mehta’s verdict that Google acted illegally to maintain a monopoly in online search. Meanwhile, the panelists noted a mixed focus on the pharmaceutical industry. Ms. Feinstein identified the Amgen/Horizon merger as the only major pharmaceutical antitrust case under the Biden administration that departed from the norm. The FTC alleged that the merger would enable Amgen to leverage its blockbuster drugs to foreclose potential future rivals to Horizon’s rare-disease drugs by offering bundled rebates across multiple drugs to payers and pharmacy benefit managers. The merger was ultimately cleared. Ms. Feinstein expects that the Agencies will prioritize their resources on specific companies that may exhibit anticompetitive conduct, rather than prioritizing specific industries.
An emphasis on labor market conduct is another potential common thread across the administrations. Ms. Hesse highlighted the FTC’s new labor markets task force, charged with investigating anticompetitive labor market conduct, such as no-poach, wage-fixing, and noncompete agreements. Nevertheless, despite the increased scrutiny on labor issues, Ms. Ohlhausen expects that the second Trump administration will oppose attempts to stretch the Agencies’ statutory authority. For example, Chair Ferguson dissented from the FTC’s Noncompete Rule, issued under Chair Lina Khan’s tenure, on the basis that the rule’s blanket ban on noncompetes overstepped the FTC’s authority under the FTC Act and the Constitution. More generally, the second Trump administration may be less inclined to pursue administrative rulemaking, , relying instead on traditional antitrust tools and applying them to newer focus areas, such as labor market conduct, on a case-by-case basis.
Cooperation Between Antitrust Enforcers, Domestically and Internationally
The third topic centered on cooperation and potential changes in the relationship between the DOJ and the FTC. Ms. Hesse emphasized that cooperation between the Agencies has generally been good, particularly in overlapping areas. She noted that while exceptions exist, agency leaders recognize the importance of speaking with one voice, especially when engaging with international enforcers, such as the U.K.’s Competition and Markets Authority. Ms. Feinstein noted that cooperation in individual cases is not always necessary but recalled instances where the DOJ sought the FTC’s expertise in hospital mergers given the FTC’s deeper expertise in this area. She highlighted past efforts to ensure consistency in public messaging, including regular exchanges between agency leaders. Addressing the possibility of structural changes, Ms. Feinstein discussed the One Agency Act, questioning whether legislative efforts to merge the two agencies would gain traction, given past difficulties in passing significant antitrust reforms. Ms. Collins added that leadership experience within the agencies, such as Gail Slater’s long tenure at the FTC, plays a role in maintaining continuity in cooperation between the Agencies.
The panelists then discussed international cooperation and how it may shift under a second Trump Administration. Ms. Ohlhausen observed that for many years, U.S. antitrust agencies maintained a consistent international stance, focusing on consumer welfare and due process while avoiding industrial policy concerns. She noted that this shifted under the Biden Administration, with U.S. agencies leveraging international cooperation to extract outcomes in merger reviews especially that were less likely under U.S. law. She pointed to Vice President J.D. Vance’s recent criticism of European regulatory burdens on U.S. tech firms as an indicator that the Trump administration may reverse course. Ms. Hesse acknowledged historical shifts in U.S. influence on international enforcement and noted that while broad policy direction may change, day-to-day cooperation remains largely driven by staff-level interactions. She cautioned that the Administration’s broader isolationist stance could affect multilateral engagements and stressed the importance of maintaining longstanding efforts to shape global antitrust practices.
Merger Enforcement Under the Second Trump Administration
The fourth topic focused on merger enforcement. Ms. Feinstein noted that settlements are important in merger enforcement and emphasized that settlements present an effective means for enforcing the antitrust laws. She expects that, based on the current rhetoric, the Agencies will rely more on settlements. Ms. Hesse noted that while investigations have taken longer under the outgoing Administration, and more second requests have been issued, the merger cases that have been litigated were apt for litigation. She thinks that this pattern is not going to change. Ms. Collins underscored the importance of efficiently allocating resources, to which the panelists had alluded before. She noted that if the Agencies can engage in effective settlements without deploying more resources, then they can free up resources for additional enforcement actions. In addition, she explained that while there have been some personnel changes at the Agencies, the merger enforcement staff by and large remains the same. Hence, there might be different questions that the Agencies will raise, but there will likely not be a significant difference in the merger review process.
Lastly, the panelists discussed Chair Ferguson’s support for the new 2025 Hart-Scott-Rodino (“HSR”) forms, and its potential impact on merger enforcement, especially with respect to second requests. Ms. Feinstein expects that there will be fewer second requests, and that enforcement will move faster due to changes in the HSR forms. Ms. Hesse further noted that this would give the Agencies more information with which to make better decisions. Ms. Collins highlighted that these efficiency gains might take some time to materialize, as the staff become accustomed to the new processes. She hopes that in the long run, the merger review process will become more efficient.
